HUMAN RIGHTS in BULGARIA in 2013 the Bulgarian Helsinki Committee Is an Independent Non-Governmental Organisation for the Protection of Human Rights

HUMAN RIGHTS IN BULGARIA IN 2013 The Bulgarian Helsinki Committee is an independent non-governmental organisation for the protection of human rights. It was established on 14 July 1992.

Chair: Krassimir Kanev Deputy chair: Desislava Simeonova

Members of the General Assembly: Antoaneta Nenkova, Daniela Furtunova, Desislava Simeonova, Dimitrina Petrova, Georgi Bankov, Georgi Toshev, Iliana Savova, Ivan Bedrov, Kalina Bozeva, Kiril Ivanov, Krassimir Kanev, Margarita Ilieva, Ramadan Kehajov, Vassil Chaprazov, Valko Stanev, Yana Buhrer Tavanier. Contents

Political developments in Bulgaria during 2013 5

Right to life, protection from torture, inhuman and degrading treatment 7

Right to liberty and security of person 12

Independence of the judiciary and fair trial 16

Right to respect for private and family life, home and the correspondence 21

Freedom of conscience and religion 23

Freedom of expression and access to information 26

Conditions in places of detention 33

Protection against discrimination 42

Right to asylum, freedom of movement 53

Women’s rights 60

Rights of the child 64

LGBTI rights 69 List of abbreviations

AEJ Association of European Journalists – Bulgaria AIP Access to Information Programme BHC Bulgarian Helsinki Committee BNT Bulgarian National Television BSP Bulgarian Socialist Party CBS Correctional boarding schools CEM Council for Electronic Media CPA Child Protection Act ECHR European Convention on Human Rights ECtHR European Court of Human Rights ESDRA Enforcement of Sentences and Detention under Remand Act FRA EU Fundamental Rights Agency FTAC Family-type accommodation centres GDBOP Directorate General on Combating Organised Crime GERB Citizens for European Development of Bulgaria HCDPC Homes for children deprived of parental care HCMD Homes for children with mental disabilities HMSCC Homes for medical and social care for children ITAMJ Institutions for temporary accommodation of minors and juveniles LSMDA Liability of the State and the Municipalities for Damages Act MOEW Ministry of Environment and Water MoI Ministry of Interior MRF Movement for Rights and Freedoms SAC Supreme Administrative Court SANS State Agency for National Security SBS Social educational boarding schools SCC Supreme Court of Cassation SDIA Sofia Directorate of Internal Affairs SJC Supreme Judicial Council SRAC Sofia Region Administrative Court SSM Special surveillance means UJB Union of Judges in Bulgaria Political developments in Bulgaria during 2013

In 2013, Bulgaria was governed by three consecutive governments. The government of the Citizens for European Development of Bulgaria (GERB) was in power until the end of February. On 20 February 2013, following several days of street protests in several Bulgarian cities, targeted bmitted the resignation of his government. On 13 March 2013, President Rosen Plevneliev appointed a caretaker government headed by prime minister Marin Raykov. The main purpose of this cabinet was to organise early parliamentary elections.

The elections were held on 12 May 2012. They were marked by severe confrontation between the main political parties, discrediting war, vote-buying suspicions and use On 14 June 2013 the of unethical propaganda practices. The discovery that the former government had arbitrarily tapped the phones of its political opponents and the suspicions that election government results were falsified tainted the situation even more. Media coverage of the election nominated campaign, especially by the private media, was not balanced. This holds true espe- MRF Member cially for the Alpha and SKAT television channels, owned by the two largest neo-totalitarian nationalist parties, Ataka and the National Front for the Salvation of Bulgaria of Parliament (NFSB). The major ethnic minorities, the Turks and the Roma, had difficulties in under- Delyan Peevski – a standing the election messages as the Electoral Code prohibits electoral campaigns businessman and to be held in a language other than Bulgarian. During the election campaign, the lead- media tycoon who er of the Movement for Rights and Freedoms (MRF) was fined for publicly addressing voters in Turkish. The elections were monitored by a mission of the OSCE Office for is widely thought to Democratic Institutions and Human Rights. The monitoring report that was published have amassed his on 25 July 2013 contained many recommendations. The most important ones con- fortune through the cerned the need for adopting measures against vote-buying, ensuring the timely application of electoral laws, providing greater opportunities for appeal of all election-re- political protection lated decisions, allowing election campaigning in minority languages, guaranteeing a of several previous balanced media coverage of the elections as well as transparent media ownership.1 governments – for Most of the votes went to GERB. Another three political parties also won parliamen- SANS chairman. tary seats: the Bulgarian Socialist Party (BSP), the Movement for Rights and Free- doms and Ataka. In the first weeks after the new parliament was constituted, GERB MPs refused to enter the National Assembly. BSP and DPS formed a government headed by BSP-nominated Prime Minister Plamen Oresharski. However, they were one vote short of parliamentary majority and quorum. The lacking vote was provided by Ataka, making the government dependent on this party. Ataka is an extreme nationalist party, which opposes basic political democracy and human rights principles. It consistently instigates hatred, discrimination and violence against the ethnic and the religious minorities, as well as against asylum seekers in Bulgaria. Having the new government rely on the support of this party made the country dangerously dependent on its neo-totalitarian ideology and hindered the adoption of any positive measures in the area of minority rights. In reality, no such measures were adopted by the end of the year and the situation in many fields degraded substantially, even more so with regard to the policy on asylum seekers and refugees in Bulgaria.

One of the new government’s first acts was to amend the legislation on combating organised crime. The State Agency for National Security (SANS), a service acting as secret police, burdened by the heritage of the communist secret services and largely excluded from the democratic oversight mechanisms, was given additional investigative and detention powers. On 14 June 2013 the government nominated MRF Member of Parliament Delyan Peevski – a businessman and media tycoon who is widely thought to have amassed his fortune through the political protec-

1 OSCE/ODIHR, Republic of Bulgaria: Early Parliamentary Elections, 12 May 2013, Warsaw, 25 July 2013, pp. 27-31. 5 tion of several previous governments One of the areas, where the situation de- – for SANS chairman. His nomination teriorated, was the failure to implement spurred massive spontaneous protests the decisions of the European Court of in Sofia and several other Bulgarian Human Rights (ECtHR, the Court). Al- cities. Many considered it a clear sign though the judgements on applications that the new government wants to use against Bulgaria over the year were not One of the areas, shady means for political retribution. that many (a total of 26, of which 5 by where the situation The protests resulted in Peevski filing a committee), by mid-February 2014 his resignation. The resignation was ac- the number of judgements monitored deteriorated, was the cepted by parliament. Nevertheless, the by the Committee of Ministers of the failure to implement protests continued for several months, Council of Europe as not implemented the decisions of the although gradually losing momentum. by the Bulgarian government reached European Court of a record high of 372. Some of these Systematic and severe violations of hu- were delivered as far back as 2002. Human Rights. man rights in Bulgaria occurred under all governments during the year. The most A joint delegation of the Council of severe and widespread ones were relat- Europe’s Advisory Committee on the ed to the treatment of the newly arrived Framework Convention for the Pro- asylum seekers, most of whom were run- tection of National Minorities and the ning away from the conflict in Syria, be- European Commission against Racism tween September and December 2013. and Intolerance visited Bulgaria in No- Most areas showed stagnation, while in vember. By the end of the year, none some there were certain improvements. of these two bodies had published its observations and recommendations.

6 Right to life, protection from torture, inhuman and degrading treatment

Despite the fact that the legislative framework on the use of force and firearms in the Ministry of Interior Act was improved in 2012,2 this had no tangible effect on the frequency of the use of excessive force and firearms in 2013. In 2013, BHC received many reliable complaints by citizens who had been mistreated by police officers and by officers in places of deprivation of liberty. In at least three cases in 2013, people lost their lives in circumstances that give rise to justifiable doubts that excessive force and firearms were used by the law enforcement bodies: • On 23 March, a police officer shot and killed Nikolay Petrov, a Roma, in the vicinity of the railroad tracks at the village of Banya, Razlog municipality. On 31 January 2014 Despite the fact that the Blagoevgrad Regional Prosecutor’s Office notified BHC that pre-trial proceed- the legislative ings had been initiated on a count of premeditated murder, and that charges were framework on the pressed against the police officer. At this time, however, no indictment has been filed. use of force and • On 20 June, 19-year-old Roma, Violeta Gospodinova, was found dead in her Sofia home. She had been detained earlier at one of Sofia’s district police directorates. firearms in the Her relatives claim that she had been severely beaten by an investigator in order Ministry of Interior to tell which of the prostituting girls were involved in theft. In a letter to BHC of 5 Act was improved in February 2014, the Sofia District Prosecutor’s Office informed that the pre-trial pro- 2012, this had no ceedings on the case were terminated in early September and that no charges have been pressed. According to the prosecution, Gospodinova died of heroin overdose. tangible effect on • On 17 September, police officers in Lovech killed Ivo Ivanov when an illegal the frequency of the logging incident turned into a chase. Relatives and eyewitnesses claim that use of excessive the officers shot at Ivanov’s van which was riddled with bullets. Upon stopping force and firearms the vehicle, he was beaten to death in the vicinity of the railroad tracks in the Zdravets neighbourhood. The victim’s sister saw multiple injuries on Ivanov’s in 2013. head and body in the morgue. However, the investigating officer told her that Ivanov had died of a heart attack at the time of his detention. On 30 January 2013, the Lovech Regional Prosecutor’s Office informed BHC that no charges had been pressed with regard to the case and that the investigation was at the stage where the materials from the investigation would be presented to the heirs. Between December 2013 and January 2014 BHC researchers interviewed convicted inmates at the prisons in Vratsa, Pazardzhik, Lovech and Stara Zagora, whose pre-trial proceedings were initiated after 1 January 2012. The questions concerned the use of force during their detention by the police and during their stay inside police stations. While the data is not representative of the system as a whole, it is comparable with the data from similar surveys conducted by BHC on the same topics in 2010, 2011 and 2012 by interviewing similar groups of inmates. The data from the four surveys is presented in the table below.

Use of force by police officers, by year % of respondents stating that force had been used against them 2010 2011 2012 2013

During detention 26,2 27,1 24,6 22,0

Inside the police station 17,4 25,5 18,0 23,3

2 See BHC, Human Rights in Bulgaria in 2012, Sofia, March 2013. 7 The data indicates a reduction in the government officials. Both unprovoked number of complaints of use of force and disproportionate force was used by police officers during detention; in this case. Among the victims were however, there is a significant increase journalists covering the protests. De- in the use of force at the precincts, spite the promises for a quick, indepen- where this is totally unacceptable. dent and impartial investigation, by the Force inside the police stations is usu- end of the year only one police officer ally used to coerce confessions or oth- had been identified; in early 2014 he er information. The 2013 increase is was charged with bodily harm.3 On 12 similar to the 2011 values when the November, the police and the gendar- The data indicates BHC survey registered a peak in police merie once again used excessive force violence under the GERB government. to disperse anti-government protesters. a reduction in the Several journalists were hurt in this case, On several occasions during the year, number of too. The incident was not investigated. security officers at closed institutions for complaints of use adults widely used unnecessary force In 2013, ECtHR held a violation of the of force by police and auxiliary means to restrain inmates. right to life in the case Nencheva and officers during Similar incidents occurred at the Sofia Others v. Bulgaria of 18 June 2013 (application No. 48609/06). ECtHR found detention; however, Central Prison in January and October, when security personnel used unneces- procedural violations of art. 2 of the Eu- there is a significant sary and disproportionate force against ropean Convention on Human Rights increase in the use the wards of foreign inmates, in order (ECHR, the Convention) as the authori- of force at the to punish them for disobeying an order. ties failed to protect the lives of 15 chil- Several inmates were severely injured. dren and juveniles at a state institution, precincts, where this In December, security and police offi- in circumstances which created an im- is totally cers used disproportionate force against minent threat to their lives. The author- unacceptable. protesting foreign citizens at the special ities also failed to conduct an effective institution for temporary placement of official investigation of the death cases foreigners in the town of Lyubimets. At that had occurred in exceptional circum- least six persons were severely injured, stances. The case is related to the death with broken limbs and body traumas. of 15 children and juveniles from the In- None of the investigations were ade- stitution for Mentally Disabled Children quate, and none resulted in indictments. and Juveniles in the village of Dzhurko- vo. They died in the winter of 1996-97 The police resorted to illegal use of of cold, lack of food, medicines, medical force against citizens on several oc- care and provision to other basic needs. casions during the year. In February, The living conditions at the institution during the protests against the GERB were extremely substandard. There was government, the police and the gendar- no medical personnel and teaching staff merie used disproportionate force on was lacking. Although the first child several occasions in response to viola- died on 15 December 1996, eight more tions of public order. The excessive use children were relocated to this home of force reached its peak on 19 Febru- from another institution. The director ary, when scores of citizens were inflict- tried to ensure funding on many occa- ed serious injuries. Apart from the dis- sions but did not succeed until March proportionate use of force, there were 1997 when 15 children had already cases of unprovoked violence against died. On 30 July 1999, the Prosecutor’s peaceful protesters. In the night of 24 office initiated an investigation against July, the police once again exercised an unknown perpetrator for ten of the unacceptable excessive use of force fifteen deaths. Almost five years later, in a badly planned operation against charges were pressed against the insti- peaceful protesters who had gathered tution’s director, the paramedic and the around the Parliament in a rally against head nurse. The prosecutors required the BSP-MRF government. The protest the Ministry of Labour and Social Poli- was motivated by a series of contro- cy, the Ministry of Finance and the Mu- versial appointments of high-ranked nicipality of Luki to provide case-related

3 “Police officer to be tried for assaulting protesters at parliament”, Praven Svyat, 27 February 2014, available at http://www.legalworld.bg/34733.policaj-otiva-na-syd-za-boj-nad-protestirash- ti-pred-parlamenta.html. 8 documents but none of these institu- lation of article 3 (protection against tor- tions has retained the documentation. ture, inhuman or degrading treatment) The case was brought to court in 2005 of the Convention. In the case Velev v. and all defendants were acquitted. The Bulgaria of 16 April 2013 (application applicants are the parents of 7 of the No. 43531/08) ECtHR found a proce- 15 children and juveniles who died in dural violation of art. 3 because the Bul- Dzhurkovo, and the Association for Eu- garian authorities had failed to conduct ropean Integration and Human Rights. an effective investigation when the ap- Calling the case “a national tragedy”, plicant was assaulted by police officers ECtHR held that the tragic events had during detention and interrogation on not occurred in a sudden, one-off and 21 through 24 March 2005. The inves- unforeseen manner, and that the au- tigation under the criminal proceedings thorities had not taken speedy, practical related to Mr Velev’s claims was termi- and sufficient measures to prevent the nated in 2008 due to expired statute Calling the case “a death cases, although they had been of limitations; in the subsequent civil national tragedy”, fully aware of the real and immediate action under the Liability of the State ECtHR held that the risk to the residents of the institution. and the Municipalities for Damages Act With regard to the investigation, the (LSMDA), the court awarded him com- tragic events had Court notes that the pre-trial proceed- pensation, holding that the complainant not occurred in a ings were initiated more than two years had been abused by police officers. An- sudden, one-off and after the events and lasted for approxi- alysing the investigation conducted by mately eight years, including around six the Bulgarian authorities, ECtHR estab- unforeseen manner. years for the preliminary investigation lished a series of irregularities which hin- alone. The organs involved in the pre-tri- dered the adequate implementation of al proceedings did nothing between the proceedings. For example, despite 2001 and April 2005, which the gov- the fact that violence was exercised in ernment failed to explain. The trial did front of higher-ranked police officials, no not result in the establishment of the investigation had been initiated. When actual causes of the deaths. Since no the investigation did commence, it fo- autopsy had been done, it was impos- cused only on the bodily harm inflicted sible to establish whether and to what on the applicant, despite his claims that extent the death in each case was due he had been abused to confess his guilt. to natural causes. The delays in the pro- Also, the Bulgarian investigative author- ceedings had also made it impossible to ities failed to initiate actions to identify ascertain whether the conduct of oth- the police officers who had mistreated er persons responsible for the running the applicant. ECtHR therefore held that of the institution might have contribut- the investigation cannot be considered ed to the tragic events. The authorities effective in accordance with the provi- did not act with reasonable diligence, sions of art. 3 and awarded EUR 4,500 which prevented the establishment of in non-pecuniary damages and EUR the actual causes of the deaths and of 3,100 in respect of fees and expenses. a possible link between those causes In the case Dimitar Shopov v. Bulgar- and the conduct of the various officials ia of 16 April 2013 (application No. responsible. According to ECtHR, the 17253/07) ECtHR held a procedural authorities failed to perform their duty violation of art. 3 because the Bulgari- to protect the vulnerable children in the an authorities had failed to conduct an institution, and thus, failed to protect effective investigation of an injury in- the public interest in particularly tragic flicted on the applicant during a fight, circumstances. The Court therefore held and because the case was investigated a violation of article 2. ECtHR awarded badly, resulting in its termination due EUR 10,000 to two of the applicants for to expired statute of limitations. In May non-pecuniary damage, while for the oth- 1991, the applicant was involved in ers ECtHR considered that the finding of a fight in his home village. During the a violation was sufficient compensation. fight, he was stabbed with a knife and In several cases, ECtHR also found a vio- sustained many other injuries. Despite

9 the fact that in the beginning of the in- treatment of Mr Gutsanov during his de- vestigation against the perpetrators the tention, as well as due to the stress and Bulgarian authorities invested reason- anxiety caused to his family; violations able efforts in gathering evidence and of art. 5.3 due to the unjustified dura- establishing the facts, long periods of in- tion of the detention and Mr Gutsanov’s action followed, resulting in the termina- right to appear before a judge; a violation of the criminal proceedings in 2006 tion of art. 5.5 due to the impossibility due to expired statute of limitations. for the applicant to be compensated for The applicant was awarded EUR 3,000 the violations of art. 5.3; a violation of in non-pecuniary damages and EUR art. 6.2 due to the violation of the pre- 2,000 in respect of costs and expenses. sumption of innocence by the minister of interior and by the court which had In the case Sabev v. Bulgaria of 28 reviewed Mr Gutsanov’s measure of de- May 2013 (application No. 27887/06) tention; a violation of art. 8.2 due to the ECtHR held a violation of art. 3 and art. lack of adequate judiciary control over 13 due to the inhuman and degrading the search of the applicant’s home; and conditions in the prison where the ap- a violation of art. 13 in conjunction with plicant is serving a life sentence, and art. 3 and 8 due to the lack of adequate the lack of effective legal means of pro- domestic remedy that could allow the tection. Mr Sabev was sentenced to life applicants to defend their right not to without parole. His complaint is related be subjected to inhuman or degrading to his detention at the Lovech Prison treatment and their right to respect for for almost nine years under a special re- their home. The applicants are Borislav gime which meant that he was contin- Gutsanov, an influential BSP politician, ually kept in a locked cell under height- his wife and their minor daughters. At ened supervision; for at least five years, 6:30 a.m. on 31 March 2010, the po- he was kept in very strict isolation, lice raided Gutsanovi’s home, arrested without access to out-of-cell activities. Mr Gutsanov and searched the premis- Considering the fact that in the case es. On the following day, the press quot- Radkov (No. 2) v. Bulgaria ECtHR had ed the minister of interior saying that already held a violation of art. 3 with re- Mr Gutsanov is one of the masterminds gard to detention conditions in the life behind a criminal group that embez- sentences ward of the Lovech Prison, zled large amounts of public funds. On the Court ruled that the severe isolation the day of his detention, Mr Gutsanov of the inmate, as well as the fact that was accused of several crimes. When he had to use a bucket for his physio- reviewing his measure of detention, the logical needs, constitute a violation of court ordered detention on remand as art. 3. Despite the fact that Mr Sabev there was a risk that he could commit won three lawsuits against the state for another crime. On 18 May 2010, al- compensation for detention conditions, most two months after his arrest, the ECtHR held that the amounts awarded Varna Regional Court dismissed Mr Gut- were unreasonably low, and that a law- sanov’s motion to be released, partially suit under art. 1. para 1 of LSMDA can- on the grounds that the court “remains not be considered an effective domestic of the view that a criminal offence was remedy when the disputed detention committed and that the accused was conditions are a direct consequence of involved”. Despite the fact that the the special regime applied to individuals Court of Appeals found that Mr Gutsa- with life sentences. The ECtHR there- nov had already resigned from his post fore also held a violation of art. 13. The as chairman of the Municipal Council Court awarded EUR 6,000 in non-pe- and therefore there was no risk of him cuniary damages and EUR 1,677.55 committing more crimes, it placed Mr in respect to costs and expenses. Gutsanov under house arrest. Finally, In the case Gutsanovi v. Bulgaria on after almost four months in detention, 15 October 2013 (application No. Mr Gutsanov was released under bail. 34529/10) ECtHR found a substantive By 26 April 2013, the criminal proceed- violation of art. 3 due to the degrading ings against Mr Gutsanov were still at

10 the preliminary investigation stage. Ac- of 18 May 2010, constitute a violation cording to ECtHR, at the time of the of the presumption of Mr Gutsanov’s in- first applicant’s detention his family nocence and therefore are in violation was subjected to psychological suffer- of art. 6.2. The Court believes that in ing which caused fear, anxiety and a the absence of prior authorisation by a feeling of helplessness and constituted judge and of retrospective review of the degrading treatment under art. 3. Also, measure in question, the procedure had Mr Gutsanov was not brought prompt- not been attended by sufficient safe- ly before a judge; this happened more guards to prevent the risk of an abuse of than three days after his detention and power by the criminal-investigation au- the government did not provide an ex- thorities, which constitutes a violation planation for this delay. ECtHR therefore of art. 8.2. In conclusion, the Court took held a violation of art. 5.3. The Court into consideration the fact that inflicting also held that placing Mr Gutsanov psychological suffering did not consti- under house arrest for more than two tute a criminal offence in domestic law, months, even though there was no rea- with the result that a possible crimi- son for this, constitutes another viola- nal complaint by the applicants would tion of art. 5.3. The Court also held that have been bound to fail. The applicants the national legislative framework did had not had available to them any do- not contain a methodology to ensure mestic remedy by which to assert their compensation for damages incurred as right not to be subjected to inhuman a result of excessive duration of deten- or degrading treatment or their right tion or of delayed appearance before a to respect for their home, due to which judge, which is a violation of art. 5.5. ECtHR held also a violation of art. 13 in ECtHR also ruled that the minister of in- conjunction with art. 3 and 8. The Court terior’s statements made on the day af- awarded the applicants EUR 40,000 ter Mr Gutsanov’s detention, as well as in non-pecuniary damages and EUR the motives of the Varna Regional Court 4,000 in respect of costs and expenses.

11 Right to liberty and security of person

The problems with regard to guaranteeing the right to liberty and security of the person in Bulgaria, as established in a series of ECtHR judgements, remained completely unaddressed by the authorities in 2013. The Ministry of Justice created a working group to elaborate proposals for legislative changes in line with the standards of art. 12 of the UN Convention on the Rights of People with Disabilities. The group set am- Thus, the problems bitious goals, including reform of the legislation on legal capacity; however, the problems concerning the accommodation of persons with mental disabilities in social in- established by stitutions remained outside its scope. A Ministry of Labour and Social Policy working ECtHR in Stanev v. group was active for a brief period. Its purpose was to come up with proposals for Bulgaria of January changes to the legislation on institutionalisation. Nevertheless, by the end of the year neither the legislation on legal capacity, nor the one on placement of persons with 2012 remained as mental disabilities in institutions had been amended. Thus, the problems established acute as in previous by ECtHR in Stanev v. Bulgaria of January 20124 remained as acute as in previous years. years. People with chronic mental disabilities continued to be accommodated in social institutions arbitrarily and without judicial control. Nothing was done to reform the care for these people in order to make it less dependent on institutionalisation. No legislative reforms were initiated to bring the legislation on the accommodation of children in conflict with the law at correctional boarding schools (CBS), social educational boarding schools (SBS) and crisis centres for children in line with the recommendations of the Committee on the Rights of the Child and with the ECtHR decision in the case A. and Others v. Bulgaria of November 2011.5 In 2013, BHC visited several CBS and SBS6 and found serious issues regarding arbitrary placement in both types of institutions. With the implementation of the delegated budgets in the Bulgarian educational system, the pedagogical councils of the CBS and SBS lost their motivation to release children early, as that would mean losing the state subsidy for them. BHC monitoring in these institutions found that cases of early releases are becoming rarer due to this. On the other hand, the applicable legislation does not allow subsequent judicial oversight of placement for the purposes of deciding on its continuous expedi- ency. At the same time, BHC established several cases of severe breaches of the law by courts that had ordered the initial placement by defining placement duration ex- ceeding the statutory three years. The placement in institutions for temporary accommodation of minors and juveniles continued to dramatically contradict the standards under art. 5.4 of the European Convention on Human Rights (ECHR) and the ECtHR In 2013, BHC visited judgement in the case A. and Others v. Bulgaria, as it does not allow any judicial review. several CBS and SBS In 2013 BHC conducted monitoring of the crisis centres for children and published and found serious a special report.7 As part of the monitoring, BHC researchers visited all crisis centres issues regarding in Bulgaria. In its judgement on A. and Others v. Bulgaria ECtHR accepted that these institutions are detention places. The BHC analyses the current legal framework on arbitrary placement the accommodation in crisis centres, the profiling, the educational process, as well in both types of as the guarantees for the fundamental rights of the children placed in such centres. institutions. The monitoring found significant arbitrary placement, including placements and period extensions based only on the consideration that the child has nowhere else to go. The placement system foresees an initial administrative and a subsequent judicial placement. In both cases, it allows arbitrariness and inconsistency with the international standards that guarantee the right to personal freedom and security. In the administrative placement, the Social Assistance directorates, which order the placement, often base their decision on “insufficient parental capacity”, without stating specific reasons. But even if such reasons are present, they do not always corre-

4 See BHC, Human Rights in Bulgaria in 2012, Sofia, March 2013. 5 See BHC, Human Rights in Bulgaria in 2011, Sofia, March 2012. 6 See Conditions in places of detention below. 7 BHC, Crisis Centres for Children in Bulgaria in 2013, Sofia, 2013. 12 spond to the purposes stipulated by law. visions of the Protection of Classified Some reasons are blatantly discrimina- Information Act. According to art. 46, tory, for example “intimate relations with the actual reasons for the imposition a boy from the Roma neighbourhood”. of the measure are not indicated when orders for the imposition of compulso- Judicial placement in all cases does not ry administrative measures related to meet the requirement for issuing deci- national security are appealed, and the sions within a “short period” under art. appeal does not stop the execution of 5.4 of the Convention. Under the Child the order. The legislation and the prac- The monitoring Protection Act (CPA), the Social Assis- tice in appealing national security-relat- tance directorates have to file a request found significant ed compulsory administrative measures for judicial placement within one month arbitrary placement, still lack procedures and opportunities of issuing the administrative placement for review of the actual reasons, the including placements order; in line with art. 28, para 3 of CPA, risks of return, the pressing public need and period the court has to review the request im- and the proportionality of the imposed mediately and make a decision within extensions based measures, in order to protect the rights one month. However, even these provi- only on the of the persons subjected to such mea- sions, which are inconsistent with art. sures against possible attempts on their consideration that 5.4 of the Convention, are not observed life, torture, inhuman or degrading treat- in practice. BHC could not find a single the child has no- ment, or the respect for their private case in which the requirement for imme- where and family life.8 In Bulgaria, these pro- diate review was honoured. The dead- visions are applied on a routine basis, else to go. lines in which the cases are reviewed rendering to a great extent the court vary between one and four months of the appeals of the detention of foreigners actual placement of the child, with the for expulsion purposes meaningless. reviews most often scheduled between a month and a half and two months fol- In 2013, ECtHR found several violations lowing placement. There are cases in of art. 5 of the ECHR in cases against which the court had not made a deci- Bulgaria. In the case Barborski v. Bul- sion throughout the whole stay of the garia of 26 March 2013 (application child at the crisis centre. This indicates № 12811/07) ECtHR held a violation that the situation with regard to guar- of art. 5.1 on account of Mr Barborski’s anteeing the right to personal freedom deprivation of liberty for more than two and security of the children placed in months after he had served his sen- The situation with crisis centres continues to be the same tence. The applicant had been convict- regard to as that described in the case A. and ed twice to a total of three years and Others v. Bulgaria, in which ECtHR held six months of imprisonment. When guaranteeing the a violation of art. 5.1 of the Convention. the two sentences were combined by right to personal court decision, a prosecutor issued an Placement of foreign nationals in insti- freedom and order for Mr Barborski’s release. How- tutions for temporary placement of for- ever, the administration of the prison security of the eigners prior to their expulsion posed in which the applicant was serving his children placed in a serious problem during the year. De- sentence refused to execute the order spite the fact that the Foreigners Act crisis centres on the grounds of errors in the calcu- was amended in June, under the stip- continues to be the lation of the time served, and notified ulations of art. 44 the expulsion orders the prosecutor’s office. More than two same as that and the orders for the revocation of the months later, and upon a request by the right of permanent residence in the Re- described in the prosecutor’s office for a review of the public of Bulgaria for national security case A. and Others v. court’s decision, Mr Barborski was re- reasons are subject to immediate exe- leased. Despite the fact that the period Bulgaria. cution. Should the actual reasons for of more than two months during which the imposition of the specific compul- the applicant was deprived of liberty sory administrative measure contain was deducted from a subsequent sen- classified information, they are indicat- tence, ECtHR held that such post faced in separate document elaborated by tum redressing of the mistake does not the respective officials under the pro- alter the fact that detention should be

8 See the latest ECtHR judgements in the following cases: Baltaji v. Bulgaria, No. 12919/04, judgement of 12 July 2011, §§ 34-49; Madah and Others v. Bulgaria, no. 45237/08, judgement of 10 May 2012, §§ 38-39; Amie and Others v. Bulgaria, No. 58149/08, § 101. 13 justified throughout its duration. Given ECtHR also held a violation of art. 5.5 the fact that the unlawful detention oc- of the Convention. The Court awarded curred when the prison administration EUR 2,000 in non-pecuniary damages disregarded the court decision, ECtHR and EUR 1,500 in respect of expenses. held that the excessive detention of In the case Djalti v. Bulgaria of 12 March more than two months had not been im- 2013 (application No. 31206/05) posed by a “competent court” within the ECtHR held violations of art. 5.1 be- meaning of article 5.1(a). ECtHR held cause the applicant had been detained that in this case the finding of a violation at a centre for temporary detention of constitutes sufficient just satisfaction. adults for over a year and three months, In the case Asen Kostov v. Bulgar- while waiting to be expelled from the ia оf 26 March 2013 (application No. country, and of art. 5.4, because the 48445/06) ECtHR held a violation applicant had no opportunity to appeal of art. 5.1 on account of Mr Kostov’s the lawfulness of his detention within deprivation of liberty for more than two a short period and the court to which Due to the fact that months than the term set by the court. the appeal was filed had not been com- Mr Djalti had no ECtHR also found a violation of art. 5.5 petent to order his immediate release. travel documents or due to the fact that the applicant had no The applicant is an Algerian national money for his return right to compensation for his unlawful who had entered the country illegally. detention. Mr Kostov was sentenced for A deportation order was issued in July trip to his home a series of crimes committed between 2004. Due to the fact that Mr Djalti country, he was 1991 and 1998. On 10 May 2004, the had no travel documents or money for detained for more court imposed an overall sentence of his return trip to his home country, he one year for two of his sentences; ac- was detained for more than a year and than a year and cording to the authorities, this period three months at the centre for tempo- three months at the had expired on 28 April 2004. Despite rary accommodation of adults in Dru- centre for temporary the court’s decisions, however, the pros- zhba-2 in Sofia. ECtHR held a violation ecutor’s office refused to release the of art. 5.1 due to the fact that the Bul- accommodation of applicant on the grounds that a new garian authorities had not acted with adults in Druzhba-2 overall sentence was to be imposed for the necessary diligence with regard to in Sofia. several of his remaining sentences. Mr the order on the applicant’s expulsion. Kostov was finally released on 1 June The Court also held that the court pro- 2004, when the decision of 10 May ceedings by which the applicant had entered into force. Considering the fact appealed the lawfulness of his deten- that an overall sentence is imposed by tion did not meet the requirements of a court and not by the prosecutor’s of- art. 5.4 as the Bulgarian courts needed fice, and rejecting the government’s ar- a total of 11 months and a half to re- gument that the procedural detention view the case, and because the court period would have in all cases been responsible for the oversight on the taken into consideration in the hand- detention had not been competent to ing down of a new sentence, ECtHR order an immediate release; the latter held that detaining the applicant after occurred 17 days after the court’s de- the decision of 10 May was not justi- cision, upon request by the detainee’s fied under art. 5.1(b) of the Convention. lawyer. The Court awarded EUR 3,500 Mr Kostov filed a compensation claim for non-pecuniary damages and EUR under LSMDA for damages incurred by 2,000 in respect of costs and expenses. his unlawful detention. His claim was In the case Amie and Others v. Bulgar- rejected because of his increased sen- ia of 12 February 2013 (application No. tence imposed by a decision of 2006 58149/08) ECtHR held violations of art. in which the longer detention period 5.1 and art. 5.4 with regard to the first was taken into consideration. The ap- applicant’s detention at a temporary plicant therefore had no chance to accommodation centre on the grounds prove his claim that he had sustained of an expulsion order, and because he damages as a result of the violation of had no opportunity to contest the law- his right under art. 5.1, which is why fulness of his detention. The Court also

14 held that the execution of the expulsion ECtHR held a violation of art. 5.4, be- order would constitute a violation of art. cause the procedure lasted almost one 8. The applicants are Mr Amie, his wife year and four months. Referring to its and their three children. None of them case law in other cases against Bulgaria, had identification documents. In 2001, ECtHR held that even though Mr Amie they were awarded refugee status, with has had the opportunity at any time to the exception of the youngest child who request his release under the Foreign- acquired Bulgarian citizenship by virtue ers Act, such an act did not meet the of being born in the country. In 2005, requirements of the Convention. ECtHR Mr Amie was detained аfter an expul- also held that the first applicant, despite sion order was issued on the grounds having the formal possibility of seeking that he had been involved in terrorist judicial review of the order for his expul- activities and is therefore a threat to na- sion, did not enjoy the minimum degree tional security. ECtHR held a violation of of protection against arbitrariness on art. 5.1 due to the fact that the grounds part of the authorities given the lack of for his detention for more than a year in-depth judicial review of the grounds and eight months, i.e. the expulsion for his expulsion, the fact the charges proceedings, did not remain valid for against him were very general, and the the whole period of his detention due fact that the final court decision on the to the lack of a realistic prospect of his expulsion had been classified. ECtHR expulsion and the domestic authorities’ therefore held that the execution of failure to conduct the proceedings with the expulsion order would constitute a due diligence. Despite the fact that in violation of art. 8. The Court awarded the end the first applicant managed to EUR 3,500 in non-pecuniary damages contest the lawfulness of his detention, and EUR 1,000 in respect of expenses.

15 Independence of the judiciary and fair trial

In 2013, the European Commission continued its monitoring of Bulgaria under the Co- operation and Verification Mechanism. The monitoring is focused on judicial reform. On 22 January 2014 the Commission published its report on the progress achieved by the country.9 It states that over the past year and half Bulgaria has taken some steps in the right direction with regard to judicial appointments and the overcoming of courts’ work overload. Still, the report considers the progress insufficient and insecure. In the area of independence, accountability and integrity of the judiciary, the report The report from the recommends the creation of a set of objective standards for appraisals and promo- tions of magistrates, the introduction of a system to monitor and evaluate the appli- monitoring of the cation of those standards; more transparency in appointments; provision of guaran- European tees for the integrity and transparency of the system of case allocation throughout Commission states the judiciary, including the introduction and systematic use of a system of random allocation; re-direct the work of the Inspectorate of the Supreme Judicial Council (SJC) that over the past to encourage integrity and judicial efficiency; establishment of a clear procedure on year and half how the SJC can react publicly in cases of political interference in the judicial system. Bulgaria has taken In the area of judicial reform, the report recommends: an update of the strategy some steps in the on judicial reform to include further measures to address the problem of uneven right direction with workload between courts and magistrates; development of annual progress reports by the SJC on reform measures; completion of work on the new Penal Code; guar- regard to judicial antees for the involvement of NGOs and professional organisations in defining and appointments and monitoring reform strategies. the overcoming of In the area of the efficiency of the judiciary system, the report recommends the in- courts’ work troduction of clear procedures and penalties to ensure consistent disciplinary rulings; overload. transparency in internal audits; measures for the effective implementation of court decisions; and achievement of real progress in e-justice. The report is especially critical of the widespread corruption in all fields of governance, including the judiciary, as well as of the close ties between organised crime and government. Despite the election of a new SJC in September10, it failed to achieve significant progress in addressing the main issues with regard to the management of the judiciary. The Union of Judges in Bulgaria (UJB) continued to be a constructive critic of the Council. UJB criticised on multiple occasions SJC’s inability to strongly defend the independence of the judiciary and of the individual judges. In early 2013, UJB and BHC expressed concern regarding the Ministry of Interior’s practice to name police operations for the apprehension of defendants released by court decisions after the respective judges.11 In early January 2013, UJB sharply criticised the voting procedure for the election of a new prosecutor general. The fact that the rules adopted by the SJC could not guarantee the secrecy of the vote, the impossibility to vote on all three nominations at the same time, as well as the interference of the minister of interior in the selection (only one of the nominees was put to the vote) is a severe violation of art. 131 of the Constitution. UJB pointed out the significant undermining of court’s authority and the independence of individual judges caused by media attacks targeting the Zlatograd District Court and the Smolyan Regional Court in the middle of the election campaigns (April 2013), when blatant populism replaced journalism ethics. Attacks on judges’ private life, competence and integrity were allowed in a SKAT TV broadcast entitled Judges Abuse the Life and the Fate of a Bulgarian Child; in fact,

9 The report is available at http://ec.europa.eu/cvm/docs/com_2014_36_en.pdf. 10 See BHC, Human Rights in Bulgaria in 2012, Sofia, March 2013. 11 The Union of Judges and BHC Oppose Tzvetanov’s Repeated Naming of Operations after Judges, available at: http://btvnews.bg/article/bulgaria/sayuzat-na-sadiite-vazrazi-sreshtu-retsidi- va-tsvetanov-da-krashtava-aktsii-na-magistrati.html. 16 the case in question is still pending. As in the previous two years, in 2013 ECtHR ruled against Bulgaria in a large Throughout the year the posting of judg- number of cases involving the right to The report is es to different courts continued to be fair trial. In the case Pashov and Oth- used as a way of career advancement especially critical of ers v. Bulgaria on 5 February 2013 without competition. At the same time, the widespread (application No. 20875/07) the Court it made the magistrates dependent held a violation of art. 6.1 and art. 1 of corruption in all and insecure. In several cases, NGOs Protocol 1 of the Convention. The case fields of governance, criticised the opportunistic posting of involves the excessive duration of a law- judges to higher judicial instances; in including the suit concerning unlawful injury by the July, UJB published a critical opinion on police. The case was reviewed by the judiciary, as well the SJC’s draft rules on posting, point- Sofia District Court and the Sofia City as of the close ties ing out that they did not meet magis- Court over a period of more than sev- trates’ expectations and did nothing between organised en years, and the implementation of to address the main problematic issue. crime and the decision awarding compensation The controversial appointments of mag- to the complainants was delayed by government. istrates continued through the year. at least six years. The case is related They brought up questions about SJC’s to police violence exercised during the ability to perform in-depth evaluations night following the protests in front of and control of magistrates’ ethics for the the National Assembly on 10 January purposes of their appointment and pro- 1997. The applicants were chased to motion. The lack of a serious discussion the residential building in which two of on alleged dependencies had a demor- them lived by armed police officers who alising effect on the magistrate com- caused them head trauma and bruis- munity in which no clear criteria on the es on the backs and arms. The Court due ethical behaviour were established. awarded each applicant EUR 2,000 In late April, several media published a in non-pecuniary damages and a total secretly recorded conversation of for- of EUR 800 in respect of expenses. mer prime minister Borisov, Sofia city In the case Dimitar Krastev v. Bulgaria UJB criticised on prosecutor Kokinov and former minister of 12 February 2013 (application No. of agriculture Naydenov in which the 26524/04) the Court held a violation multiple occasions trio discusses magistrate appointments of art. 6.1 because Mr Krastev did not SJC’s inability to and denigrates prosecutor general have available to him a procedure allow- strongly defend the Tsatsarov and other prosecutors. The ing him to obtain proper judicial review, pre-trial proceedings against Naydenov entailing a public hearing, of the pros- independence of the are also discussed. The participants in ecutor’s decision to forfeit the items judiciary and of the the conversation express their bewilder- seized from the safe. The case refers individual judges. ment of why he is being investigated to a former police official from Plovdiv and who the witnesses against him are. who was found guilty of abuse of office When the recording was made public and was handed down a suspended by select media, apparently for election sentence, which was later replaced by purposes, Kokinov resigned. While the a fine. Mr Krastev complained to the SJC accepted his resignation, it did not Court that in 1999, during the internal initiate any actions consistent with the investigation against him, his office was severity of the situation. The recorded searched and almost all items in his evidence of blatant disregard of the safe were seized and consequently for- rule of law was never investigated. feited by a prosecutor’s order. Krastev In late 2013, several non-governmental appealed the prosecutor’s order before organisations opposed the SJC’s deci- the Military Court which reviewed it as sion to continue the use by some courts part of a verification of the lawfulness of of a compromised product, LawChoice, the prosecutor’s order on the termina- instead of replacing it with ASUD, a soft- tion of the criminal proceedings against ware solution of proven reliability. The Krastev. ECtHR held that the judicial pro- preference for this product remained ceedings in which Krastev appealed the unclear. prosecutor’s order for the forfeiture of

17 the items found in his safe did not meet EUR 1,500 in non-pecuniary damages. the requirements of art. 6.1 of the Con- In the case Nikolova and Vandova v. vention, as the Military Court reviewing Bulgaria of 17 December 2013 (appli- the complaint had not held a public hear- cation No. 20688/04) ECtHR held a ing even though it was obliged to hold violation of art. 6.1 due to lack of any one under Bulgarian law. The Court also publicity in the judicial proceedings in held that since the proceedings in the the case of a dismissed police officer. Bulgarian court were not aimed at iden- The authorised lawyer was not allowed tifying the applicant’s civic rights, the to access the case and the applicant applicant had no proper judicial review had no access to the grounds for the de- available to him. The Court awarded cision for five years. The applicants are a EUR 2,400 in non-pecuniary damages former police officer, Ms Nikolova, and and EUR 1,000 in respect of expenses. her lawyer, Ms Vandova. In 2001, Ms In the case Fazliyski v. Bulgaria of 16 Nikolova was charged with bribery and April 2013 (application No. 40908/05) obstruction of justice. In March 2003, ECtHR held a violation of art. 6.1 be- she was sentenced to five years in pris- cause the applicant had not been al- on, a BGN 3,000 (EUR 1,500) fine, and lowed access to proper judicial review was barred from further employment at with regard to the psychological evalu- the Ministry of Interior. In June 2003, ation of his readiness to work with clas- the sentence was quashed at the sec- sified information within the Ministry of ond instance due to procedural irreg- Interior, and because the decisions of ularities and the case was referred for the Bulgarian courts had not been an- additional investigation; in 2005, the nounced in public hearings. Mr Fazliys- proceedings were terminated. Mean- ki was dismissed from the Ministry of while, the first applicant was dismissed Interior on disciplinary grounds when on disciplinary grounds and appealed he was found psychologically unfit per- her dismissal before the Supreme Ad- forming his duties which included the ministrative Court (SAC), with the sec- collection and dissemination of clas- ond applicant acting as her lawyer. Due sified information. Mr Fazliyski’s com- to the presence of classified materials, plaint against his dismissal was reject- SAC classified the case and Ms Vando- ed on the grounds that the authorities va was refused access with the explana- had applied the correct procedure, and tion that she needed to get permission that according to the current legislation from SANS, which she refused to do. In at that time the court was not com- the end, in 2003 the court upheld Ms petent to review the results from the Nikolova’s dismissal. She was not grant- applicant’s psychological evaluation. ed access to the decisions until the five- The decision was upheld and the ap- year statute of limitations had expired. plicant could not get copies of the two According to the Court, the total lack decisions because the cases had been of publicity in the judicial proceedings classified. ECtHR held a violation of art. was not proportional to the sought pur- 6.1 on account of the Bulgarian courts’ pose. The Court held that the presence refusal to review the applicant’s psycho- of classified documents in the case is logical evaluation, developed by the In- not grounds for it to be completely clas- stitute of the Ministry of Interior, a body sified, without assessing the necessity reporting directly to the minister of in- thereof or taking alternative measures terior, and because the results from the and classifying only some documents. evaluation were not communicated to As to the publicity of the case, ECtHR Mr Fazliyski. ECtHR also held that since held that there are technical means the case was classified from the on- that provide for restricting the access set, the decisions were not announced to the specific part containing the clas- publicly and the applicant did not get sified information. The Court awarded access to them for 15 months. Accord- EUR 2,400 in non-pecuniary damages ing to the Court, this also constitutes a and EUR 1,000 in respect of expenses. violation of art. 6.1. The Court awarded In the case Petko Petkov v. Bulgaria

18 of 19 February 2013 (application No. his official duties. Mr Vasilev appealed 2834/06) ECtHR held a violation of art. his retirement order, stating that he had 6.1 due to a procedural requirement to filed his retirement request under du- have Mr Petkov present an inventory of ress and asked the court to interrogate an inheritance. The requirement was witnesses who could confirm this. How- imposed retroactively to a pending law- ever, the three-member SAC panel did suit in which the applicant was claiming not allow the interrogation of witness- a reserved share of his father’s inheri- es and did not review the applicant’s tance which was inherited in its entire- claims that he had acted under duress. ty by the brother of the deceased, the Although the court ruled in favour of applicant’s uncle. Under the provisions the applicant, it did so on grounds, of the Inheritance Act, anyone claim- which were subsequently rejected by ing a reserved share of an inheritance the five-member panel of the same who is not a “heir-at-law” must provide court. Thus, the essence of Mr Vasilev’s an inventory of the inheritance. The complaint was not reviewed by a court, term “heir-at-law” is not defined in the which according to ECHR deprived the legislation and was subject to a 1964 applicant of access to fair trial under interpretative decision of the Supreme art. 6.1. The Court awarded EUR 1,500 Court of Cassation (SCC). Referring to in non-pecuniary damages and EUR this interpretation, the applicant had 1,084 in respect of costs and expenses. not provided the respective inventory In the case Galina Kostova v. Bulgaria of the inheritance. In the end, however, of 12 November 2013 (application No. his claim was rejected on the grounds 36181/05) ECtHR did not find a viola- In the case Zhelev v. of a new interpretative decision of the tion with regard to the refusal of the na- SCC of 2005, under which he had to Bulgaria of tional courts to examine whether it had provide such an inventory. Mr Petkov been proportionate to strike her off the 15 January 2013 could not do that because the term had list of persons qualified to act as liquida- (application expired. ECtHR held that the SCC had tors of insolvent companies. The appli- not paid any attention to the fact that No. 39143/06) ECtHR cant, Ms Kostova, is a lawyer and was the interpretative decision had been held a violation of included in the list of liquidators. The applied mechanically, regardless of the case refers to her elimination from this art. 6.1 due to the consequences for the applicant’s right list in 2004, by order of the minister of to have his pending case reviewed in excessive duration of justice, after she was appointed liquida- substance. ECHR therefore concludes the criminal tor to an insolvent state-owned compa- that the unforeseeability of the pro- ny. The company’s management did not proceedings, which cedural requirement applied retroac- approve of her appointment and made lasted ten years and tively in the applicant’s pending case several attempts to have her replaced. restricted his access to court to such eight months. One of the reasons stated in support of an extent that the very essence of that this was that she had failed to provide a right was impaired. The Court awarded list of the company’s creditors within the EUR 1,000 in non-pecuniary damages statutory deadline. When she appealed and EUR 1,056 in respect of expenses. the order for her elimination from the In the case Ivan Stoyanov Vasilev v. list of liquidators, a three-member SAC Bulgaria of 4 June 2013 (application panel reviewed in detail whether the ap- No. 7963/05) ECtHR held a violation of plicant had committed the violation on art. 6.1, because the applicant, a former which the minister’s order was based; police official, had no access to а fair tri- however, it refused to rule on the pro- al with regard to his allegations that he portionality of the sanction. The deci- had been forced to request early retire- sion was upheld by a five-member pan- ment. He claims that he had filed an ear- el. According to ECtHR, the minister’s ly retirement request which resulted in order refers to the regulation of the pro- his involuntary dismissal. He also claims fession “liquidator of an insolvent com- that there was a possibility for his dis- pany” due to which the authorities were missal on disciplinary grounds because extremely sensitive to the requirements of a fine imposed on him with regard to for high professional qualities and accu-

19 racy expected of the persons exercising case was reviewed at three instances. it, and the minister had oversight pow- In the case Aleksandrovi v. Bulgaria ers over the liquidators. Taking into con- of 22 January 2013 (application No. sideration the fact that the minister had 42983/04) ECtHR held a violation of given the applicant an opportunity to art. 6.1 due to the excessive duration present her version of the case and the of the criminal proceedings against the respective documents, in order to make first applicant related to a charge of an objective decision, ECtHR held that theft. The proceedings lasted ten years the working legislation had provided and four months at a single instance. In the opportunity for even a single irreg- the case Nikolay Dimitrov v. Bulgaria ularity on behalf of the liquidator to re- (No. 2) of 8 January 2013 (application sult in his elimination from the list. The No. 30544/06) ECtHR held a violation severity of the violation was irrespective of art. 6.1 due to the fact that after the and the legislation did not allow for a applicant had been awarded compen- different sanction. ECtHR therefore held sation under LSMDA, he had to pay that in this case the judicial review excessive court fees which amounted exercised by SAC had been consis- to almost 1/3 of the compensation tent with the requirements of art. 6.1. awarded. In the case Bashikarova and Others v. Bulgaria of 5 February 2013 Some ECtHR judgements under art. 6 (application No. 53988/07) ECtHR held of the Convention were related to triv- a violation of art. 13 with regard to the ial violations that have already been first two applicants due to the lack of addressed in similar cases in the past. effective remedy against the delay of a This is why they were reviewed by a vindication claim filed against the ap- three-member committee and not by plicants by a third person, a heir of the a panel. In the case Zhelev v. Bulgar- owner of the applicants’ apartment be- ia of 15 January 2013 (application No. fore its nationalization in 1946. ECtHR 39143/06) ECtHR held a violation of also held a violation of art. 6.1 with re- art. 6.1 due to the excessive duration gard to the first two applicants due to of the criminal proceedings against the the excessive duration of proceedings applicant on charges of bodily harm in against the applicants, which lasted a traffic accident. The proceedings last- more than 14 years at three instances. ed ten years and eight months and the

20 Right to respect for private and family life, home and the correspondence

No measures were taken in 2013 with regard to the implementation of the ECtHR judgements in the case Yordanova and Others v. Bulgaria of April 201212. No measures were The Court had held a violation of art. 8 of the Convention with regard to an at- taken in 2013 with tempt at involuntary eviction of Roma in a Sofia neighbourhood. The Court had regard to the applied art. 46 of the Convention and had recommended amendments to the Municipal Property Act aimed at preventing evictions with the purpose of restor- implementation of ing possession of municipal and state land without a proportionality assessment the ECtHR of the measure. Despite the fact this act was amended during the year, the prob- judgements in the lem was not solved. Furthermore, in early August an involuntary eviction in a Roma neighbourhood in Plovdiv resulted in many people losing their only home. case Yordanova and The use of special surveillance means (SSM) to secretly spy on citizens’ com- Others v. Bulgaria of munications was an issue that received special attention in 2013. In May sev- April 2012. eral media disclosed information that the former minister of interior had arbitrarily used SIMs to spy on political opponents. This resulted in the initiation of an investigation against him, which had not concluded by year’s end. The ac- cusations of arbitrary phone tapping became a considerable part of the government’s opponent’s election campaign, including that of the two main political parties, which in the end formed the new cabinet, BSP and MRF. In a series of judgements against Bulgaria in the past several years, ECtHR held that the communications tapping system, as established by law and in practice, is inconsistent in some aspects with the requirements of lawfulness under art. 8 of the Convention. This holds especially true for cases, where phone tapping is used against persons who pose a threat to national security, in which case there are no adequate safeguards.13 Other deficiencies identified by the Court include the lack of adequate procedures for the verification of the contents and the protection of the confidentiali- The Special ty of the materials and their disposal; the lack of independent control over the materi- Surveillance Means als, which are outside the scope of the phone tapping permission; and the lack of notification of the persons against whom special investigation techniques were used.14 Act was amended in The Special Surveillance Means Act was amended in July and August 2013. The July and amendments restricted the cases in which SSM can be used and created a new August 2013. The body to apply them, the Technical Operations State Agency at the Council of Min- amendments isters. However, the possibility for the use of SSM by SANS, an institution which is not subject to much control by the democratic institutions and the rule of law and restricted the cases which during the years gained additional powers to investigate and detain people, in which SSM can remained. The amendments created a new SSM oversight body, the National Bureau be used. for Oversight of Special Surveillance Means. Its statutory powers include access to information on the use of SSM by the respective bodies and structures; verification of the records kept by the bodies and structures with regard to their activities under the Act and the requests, permissions and instructions on the use and the application of SSM; the issuing of compulsory instructions on the improvement of the SSM usage and application regime, as well as on the storage and the disposal of the information collected. The National Bureau also has the power to develop activity log models for the bodies and structures and rules on the storage of requests, permissions and instructions on the use and the application of SSM. In consistency with art. 36g of the Act, the National Bureau notifies the citizens when SSM have been illicitly used against them. However, this provision explicitly excludes the notification of citizens – even when the use of SSM against them was illegal – when it endangers the achievement of the goals for which the use of SSM was permitted, when it creates a risk of revealing operative capacities or technical means, or when it creates a risk to the

12 See BHC, Human Rights in Bulgaria in 2012, Sofia, March 2013. 13 Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, § 79; Hadzhiev v. Bulgaria, § 45. 14 Hadzhiev v. Bulgaria, § 45. 21 life and the health of the undercover op- application requests filed in court be- erator and his family. The law does not tween January and September 2013 allow the citizens to request and receive was 3,555; the number of approved re- information whether SSM have been quests was 3,455 and the number of There are solid used against them. This casts doubts people against whom SSM were used indications that on the consistency of the amend- was 3,367. This is a significant increase ments with the requirements arising not only the use of compared to 2012 when, according to from ECtHR rulings against Bulgaria. the prosecutor’s office’s annual activity SSM in 2013 has Despite the legislative amendments report, it had filed a total of 2,596 re- not declined but on and the declarations of the BSP-MRF quests, of which 2,574 were approved, the contrary, it has government that they will put an end and the number of people against whom 15 increased. to the scale and arbitrary use of SSM SIT were used was 1,609. On 24 Jan- by the GERB government, there are sol- uary 2014, SANS refused to provide id indications that not only the use of BHC with detailed information on its SSM in 2013 has not declined but on use of SSM on the grounds of the classi- the contrary, it has increased. Based fied nature of the information, although on information provided by the Su- only statistical data were requested. preme Cassation Prosecutor’s Office BHC appealed SANS’s refusal under on request by BHC, the number of SSM the Access to Public Information Act.

15 Prosecutor’s Office of the Republic of Bulgaria, Report on the Implementation of the Law on the Activities of the Prosecution and the Investigative Bodies in 2012, Sofia, 2013, p. 46, available at: http://www.prb.bg/uploads/documents/docs_3923.pdf. 22 Freedom of conscience and religion

No progress was achieved with regard to religious freedom in 2013. As in previous years, there were a series of violations against representatives of non-Orthodox religious denominations, including: • vandalised houses of worship; • discriminative representation of rituals and confessional identity in the media; • refusal of the prosecution to initiate criminal proceedings for public instigation of religious hatred, discrimination and violence; As in previous years, • refusal of the Council for Electronic Media to impose sanctions for manifestations of Muslim places of religious hatred and discrimination in the media; worship and other • municipal councils’ practice to use local regulations to restrict the religious activities assets owned by the of certain minority religious communities. religion were The Muslim religion was subjected to various forms of restrictions of religious freedom. systematically The lawsuit against the 13 imams, which began in 2011 at the Pazardzhik District Court, continued in 2013.16 It entered the final phase at the end of the year. The prosecutor’s of- vandalised in 2013. fice maintained the charges under articles 109, 108 and 164 of the Penal Code for involvement in the management of a group preaching an “antidemocratic ideology”. According to the prosecution, the antidemocratic ideology consists of preaching Salafite Islam, oppos- ing the division of powers, liberalism, appeals to not vote in the elections, and opposition to gender equality. The indictment does not state that the preaching involves calls for violence. None of the witnesses questioned by the court during the year has confirmed the existence of such calls. In their pleas, the lawyers of the Muslim preachers pointed out that peacefully practiced religious convictions, as well as the specific ritual of a religion, cannot be subject to criminal law. By the end of the year the verdict was still pending. As in previous years, Muslim places of worship and other assets owned by the religion were systematically vandalised in 2013. With few exceptions, the police and the prosecution did not show much interest and activity in identifying the perpetrators and punishing them. • On 7 January 2013, during noon prayer, unknown persons threw stones at the windows of the Hadji Osman mosque in Dobrich. Three windows were broken and one worshiper sustained a leg injury. The district mufti’s office notified the police. • On 11 January 2013, stones were once again thrown at the windows of the Hadji Osman mosque in Dobrich. The police was notified. • On 22 January 2013, around 6.30 a.m., Muslims from Gotse Delchev found a pig’s head posted on the mosque’s entrance at 3 Zvancharska Street. Officials of the district mufti’s office in Gotse Delchev notified the police and sent a letter to the Gotse Delchev District Prosecutor’s Office. In the letter, the Gotse Delchev district mufti provided also information about the provocations by extreme right neo-totalitarian parties, such as VMRO and Ataka, which used a series of public events to instil religious hatred and create tension between the religious communities in the region. Together with a regional media, Top Press, they organised several rallies to protest against the Muslim community’s intention to build a new mosque in town. The prosecution did not do anything. • On 5 January 2013, around 4.00 a.m., two youngsters aged 23 and 22 threw stones at the Dzhumaya Mosque in Plovdiv and broke three windows. Minutes after the incident, they were apprehended by employees of Municipal Securi- ty who notified the Fourth Precinct. The two men were detained for 24 hours. • On 8 February 2013, the Azizie Mosque in Varna woke up with the inscriptions “Fear, Turks”, “Levski is alive”, “Bulgaria above all” and a cross painted on its walls. The inscriptions were noticed by the Muslims who notified the employees of the district mufti’s office and the mosque’s imam. The Varna First Police Precinct was also notified. The

16 See BHC, Human Rights in Bulgaria in 2012, Sofia, March 2013. 23 law enforcement bodies visited the happened to be inside and called crime scene and initiated pre-trial pro- 112. The police caught the perpetra- ceedings against unknown perpetrator at the crime scene. At 8:00 a.m. tors. The latter were never identified. on the following day the police called the imam and told him that the perpe- On 7 March 2013, the fasade of the • trator would stop by and pay for the Yali Mosque in Karlovo was sprayed damages. He had only been offered to with the inscription “Death to you, sign a “warning protocol”. When this Turkish trash!” and a swastika. The lo- did not happen, the imam called the cal media covered the news. The po- district mufti’s office. The mosque in lice could not identify the perpetrator. Blagoevgrad has been vandalised on • In the night of 25 April 2013, the multiple occasions but until this in- central mosque in Isperih was paint- cident none of the perpetrators had ed with anti-Muslim inscriptions. been caught. In this case, the perpe- This happened for the first time in trator was caught at the crime scene this region. The district mufti’s of- and was then released to pay for the fice and the Muslim trustees con- damages without being prosecuted. demned the act and filed a complaint • On 19 December 2013, the Azi- with the prosecutor’s office. The zie Mosque in Varna was set on fire. perpetrators were never identified. The damages were substantial. The • In the night of 6 September 2013, possible perpetrator was recorded by unknown persons painted the fence the security cameras. The recording of the Azizie Mosque in Varna with in- shows him exiting the mosque a few scriptions “OUT!!!”, “14/88” and a swas- minutes before the fire started. How- tika. The inscriptions were noticed by ever, as of the end of the year, the worshippers who notified the employ- perpetrator had not been identified.19 ees of the Varna district mufti’s office. • On 20 December 2013, around They in turn notified Varna’s First Po- 11:30 p.m., there was yet another lice Precinct and send them photos. attack against the mosque in Blago- Pre-trial proceedings were initiated evgrad. The perpetrator threw stones but perpetrators were not identified. at its windows which triggered the • On 6 October 2013, there was an at- security system. Security staff caught tack against the central Eski Mosque the perpetrator and handed him over at 21 Otets Paisii Street in Kazanlak. to the police. The police drafted a The attackers broke several windows. protocol and, after being detained for Two weeks later, on 20 October 2013, several hours, the perpetrator was re- there was an arson attempt. The inci- leased for unknown reasons. Once dent was recorded by security cameras. again the perpetrator claimed that he The images show a youngster walking was drunk and did not remember any- around the mosque during the night, thing, as well as that he will pay for carrying a fuel can. He then starts to the damages if released. Once again pour its contents on the western walls the police irresponsibly let him go. 17 and windows and sets them on fire. • On 25 December 2013, the win- Two students from the universities in dows of the mosque in Kazanlak Varna and Sofia were arrested sever- were once again broken. The perpe- al days later. One of them confessed trators have not been identified.20 to the arson and the breaking of the windows in complicity with the other • On 29 December 2013, the Sherif one.18 As of the end of the year, the Halil Pasha mosque (a.k.a. Tombul perpetrators had not been convicted. mosque) in Shumen once again woke up with “DEATH TO YOU!” painted on • On 19 November 2013, around its external front wall. The police draft- 11:40 p.m., the mosque in Blago- ed a protocol and conducted an in- evgrad was subjected to yet another vestigation but the perpetrators were criminal act. A man broke the window not identified.21 On 31 December the and tried to break the door. The imam Municipality removed the inscriptions.

17 The video is available at: http://news.ibox.bg/news/id_1108725442. 18 See “Two young people arrested for vandalising the mosque in Kazanlak”, 28.10.2013, available at: http://www.kazanlak.com/news-13441.html. 19 “The Azizie mosque in Varna falls victim to arson”, 20 December 2013, available at: http:// www.grandmufti.bg/bg/news-from-bulgaria/4138-varnenskata-dzhamiya-qaziziieq-zhert- va-na-umishlen-palezh-.html. 20 “Vandals attack a mosque”, Trud daily, 27.12.2013. 21 “Vandals spray-paint a mosque and a monument”, Trud daily, 3.01.2014. 24 Apart from the Muslims, representatives of new regional governor, appointed by the other minority religious communities also new cabinet, revoked the order and with- fell victim to discrimination and violence. drew the complaint to the Burgas Admin- The activities of Jehovah’s Witnesses’ fol- istrative Court.22 The SKAT TV channel, as lowers were hindered in 2012, when mu- well as other local media, initiated a cam- nicipal councillors from the NFSB party paign to denigrate Jehovah’s Witnesses. tabled a memo in which they asked the The Council for Electronic Media did not Burgas Municipal Council to ban the dis- react to these broadcasts. Jehovah’s Wit- semination of religious brochures of this nesses reported cases of physical and denomination. The justification of the na- psychological abuse and libel in local me- tionalists was “threat to national security, dia in Kyustendil, Sevlievo, Varna, Plovdiv, health and morale” and other civic free- Veliko Tarnovo, Dobrich and Gabrovo. doms. This justification was upheld by the Municipal Council in February 2013 Representatives of the Church of Jesus when it voted on the amendments of the Christ of Latter-day Saints (the Mormons) Ordinance on Preserving the Public Order also reported cases of violence, discrimi- within the Municipality of Burgas. These nation and abuse during the year. These provisions prohibit religious propaganda include attacks by private individuals at citizens’ homes “without their express against property owned by the church: consent”, as well as religious rallying in breaking windows, removing plaques, the city’s streets by the dissemination of painting walls. Nationalist political par- free materials: brochures, leaflets, books, ties, such as VMRO, NFSB and the new etc. The fact that this ordinance, which youth organization Fidelity.net, system- clearly contradicts the Religions Act, was atically use the public space to rally the adopted by 37 councillors with no votes citizens against the representatives of this against is indicative. The Burgas regional church. People, who had filed complaints governor contested by an order the ordi- with the police, were told that there was nance at the Burgas Administrative Court. no sufficient evidence of violations and At the end of September, however, the that no proceedings will be initiated.

22 The new order is available at: http://bsregion.org/bg/news/view/72/1277. 25 Freedom of expression and access to information

Freedom of expression In 2013, Bulgaria The downturn in freedom of expression in Bulgaria continued in 2013. The tangle of dropped 12 places in economic interests, political interests and media tightened so much that it almost suf- focated freedom of expression. More than ever, the media were used for manipulation the Reporters without purposes. Lies are published on a daily basis with the purpose of bending someone or Borders’ Press Freedom misleading the public, with total impunity. There were also no consequences for the Index, plummeting to everyday instigation of hatred and violence against ethnic and religious minorities, asylum seekers and people of different sexual orientation in media owned by political the 100th place. parties, such as Ataka-owned Alpha TV channel and the SKAT TV channel, owned by leading politicians from the National Front for the Salvation of Bulgaria. The very few spaces of media freedom were islands in an ocean of falsifications and propaganda. The media regulators watched inactively the downturn in media freedom over the year. Apart from the non-existent distance between media, oligarchy and politicians, some of the other issues with regard to freedom of expression in Bulgaria over the past year include the still non-transparent media ownership and financing, the meddling of the owners in the editorial policy, various forms of pressure and severe self-censorship, non-compliance with the ethical rules of journalism, ineffec- tive media self-regulation, disguising of paid articles as editorial content, on-going drop of quality and the funnelling of European funds towards specific media. In 2013, Bulgaria dropped 12 places in the Reporters without Borders’ Press Free- dom Index, plummeting to the 100th place (its worst ranking ever) as the country with the least free media in the EU.23 In comparison, in 2006 the country ranked 35th. Bulgaria retained its position (77th out of 199 countries) in the annual ranking of US-based Freedom House, remaining in the group of countries with “partly free” media.24 “Journalists in Bulgaria continue to face the threat of physi- Media ownership and cal violence, often in response to investigations that imperil powerful business in- financing lack terests or seek to expose organised crime”, states the Freedom House report. transparency, and In its first EU Anti-Corruption25 the European Commission states that media owner- paid-for coverage is ship in Bulgaria is further concentrated in the hands of the same people, compromis- ing editorial independence. According to the report, “media ownership and financing not consistently lack transparency, and paid-for coverage is not consistently identified as such. Print identified as such. media, especially local outlets, depend on the public sector for advertising revenue. [...] An increase has been noted in media self-censorship due to corporate and political pressure”. Bulgaria is at the bottom of the ranking compiled by Index on Censorship.26 According to its report, Bulgaria is among the EU countries with worst results with regard to democracy and media freedoms. The report also notes that Bulgaria, together with France and Ireland, cause concern due to evidence of police interference in the work of journalists and bloggers. Media and Democracy in Central and Eastern Europe27, a research project of the Department of Politics and International Relations of the University of Oxford and the Department of Media and Communications of the London School of Econom- ics and Political Science, comes to the conclusion that politicised government, tan-

23 http://rsf.org/index2014/en-index2014.php 24 http://www.freedomhouse.org/report/nations-transit/2013/bulgaria#.Uw3bfkKSy-o 25 http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/organized-crime-and-human-trafficking/corruption/anti-corruption-report/index_en.htm 26 http://www.indexoncensorship.org/wp-content/uploads/2014/01/Time-to-Step-Up-The-EU- and-freedom-of-expression.pdf 27 http://mde.politics.ox.ac.uk/index.php/home/2-news/179-new-fianl-project-reports-published 26 gled relations between business and regard to the internal editorial pressure, government, and unclear media owner- 60% of the respondents point out that ship are typical of Central and Eastern this is a frequent practice on behalf Europe. As part of the project, surveys of their line editors or editors-in-chief, were conducted in Bulgaria, Hungary, while 30% state that they resort to Poland, Romania and Slovenia. Accord- self-censorship on a regular basis. Pressure has been ing to the survey, media ownership is A study conducted by Market Links for exercised against not sufficiently transparent and some the Konrad Adenauer Foundation indi- media owners are at the same time ac- half of the cates that only 14% of the Bulgarians be- tively involved in politics and/or busi- journalists (47%) lieve that independent journalism exists ness, while journalists are poorly paid, in the country; this percentage is two working for poorly trained, divided and disoriented. times lower among Sofia residents.30 Bulgarian media The state of the media in the country In 2013 we became witnesses to vari- due to the content continued to be part of diplomatic of- ous forms of pressure, intimidation and ficials’ statements. For example, Ger- of their publications attacks against journalists. No prog- man ambassador Matthias Hopfner and broadcasts. ress was achieved with regard to the said that the oligarchic circles have attacks from this and previous years. the natural inclination to exert more and more influence on the media in In the evening on 16 September, bTV order to protect their political and eco- morning anchor Genka Shikerova’s car nomic holdings, while freedom has suddenly burst in flames while parked mutated into anarchy, creating a real in front of her home in the Geo Milev vacuum in the media.28 According to neighbourhood. Shikerova told bTV that him, if media concentration is too high it was a case of arson. In an open let- and media ownership is concentrated ter to the Sofia Directorate of Internal within oligarchic circles, democracy Affairs (SDIA) BHC stated: “We insist is under threat because the media are that this obvious attempt at intimidat- the elixir of life for modern democracy. ing a journalist with the purpose of restricting her freedom of expression According to a study conducted by the by launching the heavy mechanism of Association of European Journalists – self-censorship be investigated quickly Bulgaria, pressure has been exercised and professionally, so that the perpetra- against half of the journalists (47%) tors and those who sent them be iden- working for Bulgarian media due to the tified and detained. The lack of such an content of their publications and broad- investigation has severe repercussions casts.29 Two thirds of the interviewees both on the journalistic profession and have witnessed pressure being exer- on the society as a whole”.31 The Orga- cised by media owners, editors, adver- nization for Security and Cooperation in tisers, companies or individuals with po- Europe (OSCE) also asked that the case litical affiliations. More than 30% of the be quickly investigated.32 Nevertheless, journalists who took part in the survey the perpetrators were not identified. have been subjected to direct pressure by politicians, advertisers and represen- In the night of 23 July the police used tatives of various economic circles. With inadmissible excessive force against

28 http://www.mediapool.bg/darzhava-v-darzhavata-oligarhichni-kragove-vladeyat-i-vliyayat-na-mediite-news211757.html 29 https://www.google.bg/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&ved=0CDsQF jAC&url=http%3A%2F%2Fwww.aej-bulgaria.org%2Fwp-content%2Fuploads%2F2013%2F06%2F- Press-Freedom-Survey-AEJ_2013.doc&ei=KOENU4WUA4PRtAa5hoGgCA&usg=AFQjCNF_8K9y- b1Ian7uMMNNopLXZYefN_A&sig2=tF_yOioc2v3C0BR6GpYBTw&bvm=bv.61965928,d.Yms 30 http://www.dw.de/%D0%B7%D0%B0%D1%89%D0%BE-%D0%B1%D1%8A%D0%BB%D0%B3% D0%B0%D1%80%D0%B8%D1%82%D0%B5-%D0%BD%D0%B5-%D0%B2%D1%8F%D1%80%D0% B2%D0%B0%D1%82-%D0%BD%D0%B0-%D0%BC%D0%B5%D0%B4%D0%B8%D0%B8%D1%82% D0%B5/a-17409114?maca=bul-rss-bul-pol-1477-rdf 31 http://www.bghelsinki.org/bg/novini/press/single/otvoreno-pismo-do-sdvr-po-povod-podpal- vaneto-na-avtomobila-na-genka-shikerova/ 32 http://www.trud.bg/Article.asp?ArticleId=2304482 33 See Right to life, protection from torture, inhuman and degrading treatment. See also: http://www.bghelsinki.org/bg/novini/press/single/bhk-nablyudavahme-nedopustima-svrhupotre- ba-na-sila-ot-strana-na-policiyata-spryamo-protestirashite/ 27 peaceful protesters gathered around tion allows the members of parliament parliament. BHC issued a statement33, to decide when to order direct broad- noting that the fact that journalists casts in the two public electronic media. covering the protests were also among In April Hristo Hristov, a journalist and the victims of the police violence was founder of desebg.com, announced a a cause of special concern. Some of death threat against him and his fam- them were hit and insulted by police ily.38 As a result, public figures, rights officers without any justification. BHC activists and journalists appealed to considers this to be an unacceptable the Directorate General on Combating violent restriction of media freedom of Organized Crime (GDBOP), the Min- expression and of citizens’ right to in- istry of Interior (MoI) and the prose- formation. BHC called on the prosecu- cution to do find the culprits.39 They tion to conduct a quick, thorough and had not been identified by year’s end. impartial investigation and to publicly report the findings. Reporters without In April the prosecutor’s office sum- Borders also condemned the cases of moned for questioning Boris Mitov, a police violence against journalists and journalist for the Mediapool website. bloggers covering the blockade of par- This happened just two hours after the liament in Sofia.34 By the end of the publication of his article “The Bulgari- year, no police officer had been indict- an Watergate: and who will supervise ed for the attacks against journalists. the supervisors?”40 dedicated to the In the evening of 26 June Bulgarian MoI phone tapping scandal. After sev- National Television (BNT) aired a state- eral attempts to have Mitov identify ment of the speaker of parliament Mi- his sources, the prosecutor threatened hail Mikov in which he “criticised” the to initiate pre-trial proceedings against free media for the manner in which him with regard to information about they were informing society about the the trial against Nikolay Tsonev, Tencho In 2013, funds Popov and Petar Santirov used by Mitov continued to be dissatisfaction with the government. He also made “recommendations” on in his article. The information had been funnelled towards the behaviour of non-governmental or- declassified in 2010 by the Sofia City media supportive of ganisations.35 BHC used this occasion Court judge Ivan Koev. BHC called the direct and severe pressure exercised by the government, by to remind in a letter that journalists and non-governmental organisations the prosecution against Borisov Mitov a means of advertising are independent and cannot receive blatant attack on freedom of expression, and media coverage advice from politicians, as this would including on society’s right to informa- 41 eliminate the freedom of society.36 tion. In the opinion of BHC, the pros- contracts. ecution’s attempt to coerce a journalist During the governmental protests, through abuse of power, manifested by members of parliament took over the the threat of initiating pre-trial proceed- time of the public media in an attempt ings against him, should be regarded to disrupt the coverage of what was hap- as an open act of repression with the 37 pening on the streets. “We are broad- purpose of intimidating the media. casting directly for society to see that we are working”. This is how MP Anton In September, a letter by the Corporate Kutev (BSP) explained the regular direct Commercial Bank (CCB)42 resulted in broadcasting of parliamentary sessions the dismissal of two journalists from by Bulgarian National Television and Deutsche Welle’s Bulgarian editorial Bulgarian National Radio. The legisla- office, Ivan Bedrov and Emi Barouh. In

34 http://en.rsf.org/bulgarie-police-attack-journalists-covering-26-07-2013,44980.html 35 http://archive.bnt.bg/bg/news/view/103616/mikov_prizovavam_za_otgovorno_povedenie 36 http://www.bghelsinki.org/bg/novini/press/single/bhk-izkazvaniyata-na-mihail-mikov-sa-opas- ni-za-svobodata-na-obshestvoto/ 37 http://www.mediapool.bg/deputatite-zavzeha-efira-na-bnt-v-imidzhova-voina-s-protestirash- tite-news208437.html 38 http://desebg.com/2011-01-16-11-42-13/1179--desebgcom- 39 http://www.bghelsinki.org/bg/novini/press/single/priziv-za-razsledvane-na-zaplahite-sreshu-zhurnalista-hristo-hristov-i-negovoto-semejstvo/ 40 http://www.mediapool.bg/balgarskiyat-uotargeit-a-koi-shte-proveryava-proveryavashti- ya-news204856.html 41 http://www.bghelsinki.org/bg/novini/press/single/bhk-prokuraturata-instrument-za-presled- vane-na-presata/ 42 http://www.mediapool.bg/tsvetan-vasilev-uspya-da-pritisne-doiche-vele-s-propagandata-izkova- na-ot-mediite-na-peevski-news211469.html 28 a letter to Deutsche Welle BHC stated audit of BHC on request by the VMRO. that this sends an extremely alarming Several non-governmental organisa- signal and that watching DW meek- tions expressed concern in this regard.49 ly succumb to pressure from CCB is a In 2013, funds continued to be fun- cause of concern.43 Journalists, hu- nelled towards media supportive of man rights activists, professors in the the government, by means of adver- field of media and law also sent a let- tising and media coverage contracts. ter expressing their bewilderment at The European Commission pointed out the dismissals.44 In response, Deutsche in its EU Anti-Corruption Report50 that Welle’s Bulgarian editorial office issued parliament is considering new legis- a statement,45 pointing out that DW has lation on media ownership transpar- completed its internal review of its Bul- ency in response to the concern with garian publications on CCB and will be regard to media concentration. The discussing ways of continuing its coop- report states that “in 2013, the gov- eration with Bedrov and Barouh. They ernment vowed to streamline proce- also indicated that “despite CCB’s reac- dures for awarding publicity contracts tion, DW will continue to publish jour- financed by EU funds”. According to nalistic materials about the bank and the report, statistics suggest such con- the chair of its Supervisory Board”.46 tracts may have been allocated to the In December, the newspapers of Econo- detriment of media independence. media Ltd. (publisher of Capital, Capi- Human rights activists, including the tal Daily and Dnevnik), known for their Association of European Journalists – critical stance on the government, the Bulgaria (AEJ), expressed concern with Capital Foundation (managed by Galya the idea that photographing or filming Prokopieva who on 1 January assumed someone without their permission, in- the post of CEO at Economedia Ltd.), cluding in public places, be criminal- one of the publishers, Ivo Prokopiev, and ized in the new draft Penal Code. “The several companies within Alpha Finance possibility that such a provision may be Holding, in which Prokopiev holds the used to exercise pressure on journal- controlling stake, were subjected to a ists and photographers in the line of total of 11 tax audits.47 The prosecu- their duty, the results of which are of tion is yet to respond officially whether public interest, is a cause of concern. it had ordered the audit, as well as on The proposed text in the new Penal what grounds. The audits were alleged- Code may also hinder the develop- ly ordered by the deputy city prosecutor, ment of civic journalism”, says AEJ.51 Roman Vasilev. Another government critic, SKAT TV, was also subjected The crisis in investigative journalism con- to tax audits. SKAT representatives tinued in 2013. There was an obvious claimed that the audits were instigated lack of topics related to social diversity. 48 by the Ataka party. In December the The strong presence of hate speech National Revenue Agency initiated an towards ethnic, religious and sexu-

43 http://www.bghelsinki.org/bg/novini/press/single/otvoreno-pismo-na-bhk-do-dojche-vele/ 44 http://www.bghelsinki.org/bg/novini/press/single/pismo-do-dojche-vele-otnosno-osvobozhda- vaneto-na-ivan-bedrov-i-emi-baruh/ 45 http://www.dw.de/%D0%BE%D1%82-%D1%80%D0%B5%D0%B4%D0%B0%D0%BA%D1%86% D0%B8%D1%8F%D1%82%D0%B0-%D0%B7%D0%B0-%D0%BA%D0%B0%D0%B7%D1%83%D1% 81%D0%B0-%D0%B1%D0%B0%D1%80%D1%83%D1%85-%D0%B8-%D0%B1%D0%B5%D0%B4% D1%80%D0%BE%D0%B2/a-17119426 46http://www.dnevnik.bg/bulgaria/2013/09/27/2149736_doiche_vele_shte_obsudim_novo_ sutrudnichestvo_s_bedrov/ 47 http://www.capital.bg/politika_i_ikonomika/bulgaria/2013/12/20/2207352_chestitka_za_ koleda_ot_vlastta/ 48 http://www.vestnikataka.bg/2013/08/%D0%B0%D1%82%D0%B0%D0%BA%D0%B0-%D1% 81%D0%B5%D0%B7%D0%B8%D1%80%D0%B0-%D0%BD%D0%B0%D0%BF-%D0%B7%D0%B0- %D0%B4%D0%B0%D0%BD%D1%8A%D1%87%D0%BD%D0%B8%D1%82%D0%B5-%D0%B8%D0 %B7%D0%BC%D0%B0%D0%BC%D0%B8-%D0%BD/ 49 Вж. например: Amnesty International, Bulgaria: New law a threat to human rights activists, 16 January 2014. 50 http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/organized-crime-and-human-trafficking/corruption/anti-corruption-report/index_en.htm 51 http://www.aej-bulgaria.org/2014/01/%D0%BF%D0%BE%D0%B7%D0%B8%D1%86%D0%B8 %D1%8F-%D0%BF%D0%BE-%D0%BD%D0%BE%D0%B2%D0%B8%D1%8F-%D0%BD%D0%B0%D0 %BA%D0%B0%D0%B7%D0%B0%D1%82%D0%B5%D0%BB%D0%B5%D0%BD-%D0%BA%D0%BE %D0%B4%D0%B5%D0%BA%D1%81/ 29 al minorities in certain media con- join the signatories54, and the decla- tinued. They kept “giving the floor” ration was signed by more than 560. to extreme nationalists and peo- Access to information In November the ple with neo-totalitarian beliefs. Council for In November the Council for Electron- In 2013, as in previous years, the right ic Media (CEM) ruled inadmissible the to access to information was subject Electronic isolated manifestations of hate speech to monitoring and advocacy by the Media ruled in the electronic media covering the domestic NGO, the Access to Informa- inadmissible refugee issue.52 In its declaration, the tion Programme. The cases worked on the isolated regulatory body stated that “on the by the Access to Information Program background of the quick, diverse and (AIP)55 indicate that information under manifestations of professional coverage of the topic to the the Access to Public Information Act hate speech in the benefit of the viewers and the listeners, (APIA) is most often sought by citi- electronic media there are isolated manifestations of hate zens (207 cases), followed by journal- covering the speech and use of legally inadmissible ists (103 cases) and non-governmen- and morally reproachable descriptions, tal organisations (54 cases). In most refugee issue. such as “cannibals”, “riff-raff”, “lowlife cases, information seekers address primates”, etc.” It also added that “CEM central bodies of the executive pow- understands that hate speech does not er (135) and local government institu- usually come from media representa- tions (101); less often information is tives but from their interlocutors, most sought from bodies governed by public often politicians. However, responsibil- law (25), judicial bodies (27), indepen- ity is vested in the media by law, and dent governmental bodies (14), etc. its anchors and reporters must do what is necessary to protect the affected”. AIP’s experience shows that the number of silent refusals remained high in On BHC initiative, non-governmental 2013 (30). Most of the express refusals organisations and media profession- on substance relate to third party inter- als sent in November an open letter ests (21) and personal data (12). In 14 to the Bulgarian media with regard to cases there was a referral to art. 13, para the more frequent occurrences of pub- 2 of APIA56, while in 4 cases the refus- lications and broadcasts in which racist al was on the grounds of trade secret. and xenophobic attitudes were freely given the floor.53 “Giving the floor to In 2013, AIP’s legal team prepared a people who instigate hate, discrimina- total of 76 complaints in access to in- tion and/or violence is a violation of the formation cases. 70 court decisions internationally accepted ethical rules of and rulings on lawsuits filed with AIP journalism, and more specifically, of two support were held during the peri- articles of the Bulgarian medias’ Code od. In 51 cases the court held in fa- of Ethics. The argument used by some vour of the information seekers, and media, that the freedom of expression in 19 in favour of the administration. is guaranteed to everyone and therefore must be provided to anyone, is not ap- Some of the more interesting issues plicable in this context. Because while reviewed in case law: there is freedom of expression, there is The meaning of “public informa- no freedom of hate speech. The latter is tion” a crime”, says the declaration. Anyone, a citizen, a journalist or an NGO, could In a decision of 16 January 201357,

52 http://www.cem.bg/download.php?id=4908 53 http://www.bghelsinki.org/bg/novini/press/single/poziciya-na-nepravitelstveni-organi- zacii-i-medijni-profesionalisti/ 54 http://www.peticiq.com/6532955 http://www.aip-bg.org/ 56 APIA, art. 13(1) Access to business information shall be free. (2) The access to business information may be restricted when the information: 1. is related to the operative preparation of bodies’ acts and has no meaning per se (views and recommendations developed by or for the body, opinions and consultations); 2. contains views and positions related to current or future negotiations conducted by the body or on its behalf, as well as data related to them, and has been developed by the administration of the respective body. 57 Decision No. 704/16 January 2013, SAC, Fifth Section, on administrative case No. 9351/2012. 30 SAC upheld a decision of the Sofia Re- courts held overriding public interest in gion Administrative Court (SRAC) of June providing access to information and re- 2012 to repeal the refusal of the mayor pealed administration acts on this ground. of Elin Pelin to provide information on In a decision of 19 February 201361 the approval procedure for the extension SRAC repealed the refusal of the Minis- of the airstrip at the village of Lesnovo. try of Environment and Water (MOEW) to The court pointed out in the grounds provide information about Technical As- for its decision that the information re- sistance for the Creation of an Integrated quested referred to the development Waste Management System in the Yam- and approval of a detailed development bol Region, a project financed under the plan, environmental impact assessment Environment 2007 – 2013 Operational and other documents concerning the Programme. The court noted in its argu- allocation of land and the construction ments the existence of overriding public of an airstrip. In other words, the con- interest due to the fact that the informa- struction would affect public life in the tion is related to the allocation and spend- village of Lesnovo and the information ing of EU and national budget funds. sought would provide the residents, in- 62 cluding the applicant, the opportuni- In a decision of 1 March 2013 SAC In several API upheld the SRAC decision of June 2011 ty to form an opinion on the activities supported cases of state and local government bodies. to repeal the refusal of the Ministry of Economy, Energy and Tourism to pro- various courts held The obliged entities vide information on the Russian-Bulgar- overriding public ian cooperation in the field of energy 58 interest in providing In a decision of 28 May 2013 SAC and in the Belene Nuclear Power Station 59 upheld the first instance decision by project. The magistrates pointed out the access to which Toplofikatsiya Sofia EAD (the Sofia existence of overriding public interest in information and central heating provider) was deemed an this case, as the information was sought repealed obliged entity under APIA in its capaci- with the purpose of increasing the trans- ty of an organisation governed by pub- parency of the obliged entity’s activities. administration acts lic law. The court motivated its conclu- on this ground. sion with the fact that the Municipality Preparatory documents of Sofia owns is the sole shareholder 63 of the company and exercises control In a decision of 29 January 2013 over its management, as it appoints SAC upheld the Haskovo Administrative its management and oversight bodies. Court decision to repeal the refusal of the Harmanli mayor to provide a copy In a decision of 24 October 201360 SRAC of a report on the audit of the municipal repealed the refusal of the CEO of the Air administration conducted by the State Traffic Control State Enterprise to provide Financial Inspection Agency (SFIA). The information on the business trips of com- court pointed out that it supports company managers in 2012. The court stated pletely the arguments of the first in- in its arguments that the state enterprise stance that the Municipality has failed is a legal entity with statutorily assigned to prove that the information requested state functions with regard to the provi- is related to the operative preparation sion of air navigation services in the civ- of bodies’ acts and has no meaning per il airspace of the Republic of Bulgaria, se, nor that it contains views and posi- and is therefore an entity obliged under tions related to current or future negoti- APIA to provide information in its ca- ations conducted by the body or on its pacity of a body governed by public law. behalf, as well as data related to them. Overriding public interest In a decision of 10 June 201364 SRAC repealed the refusal of the Ministry of In several API supported cases various Regional Development and Public Works

58 Decision No. 7228/28.05.2013, SAC, Fifth Section, on administrative case No. № 11081/2012, judge-rapporteur Marieta Nikolova. 59 Decision No. 2598/14.05.2012, SRAC, Second Section, Panel 38, on administrative case No. 7193/2011. 60 РDecision No. 6434/24.10.2013, SRAC, Second Section, Panel 34, on administrative case No. 4829/2013. 61 Decision No. 1151/19.02.2013, SRAC, Panel 25, on administrative case No. 3773/2012. 62 Decision No. 2932/01.03.2013, SAC, Fifth Section, on administrative case No. 11256/2011. 63 Decision No. 1364/29.01.2013, SAC, Fifth Section, on administrative case No. 3435/2012. 31 to provide information on OLAF’s final Silent refusals report on the possible irregularities in the implementation of Water’s Way, The case law of repealing silent refus- a project co-financed by ERDF under als under APIA remains exceptional- the 2007–2013 Romania-Bulgaria ly consistent. According to case law, Cross-Border Cooperation Programme. APIA allows the obliged entities only The Ministry had motivated its refusal one possibility to act upon receiving a by claiming that the information was re- valid access to information request: to lated to the operational preparation of come up with a motivated decision to bodies’ acts and does not have mean- allow or deny access to the information ing per se. The court pointed out in its and to notify the applicant in writing. arguments that the refusal doesn’t identify the final acts that were formulated In 2013 ECtHR ruled against Bulgaria on the basis of the information, due to in a case of violation of the freedom of which the interested parties had no way expression. In the Cholakov v. Bulgar- The case law of of obtaining information on the contents ia of 1 October 2013 (application No. repealing silent of the report. The decision also states 20147/06) ECtHR held a violation of that the findings in the report cannot be art. 10 on account of the applicant’s refusals under APIA changed by the body to which they are sentencing to ten days in detention for remains addressed. They have meaning per se expressing his political opinion. In No- exceptionally and access to them must be provided. vember 2007 the applicant was charged consistent. Access to information: access to with minor hooliganism and sentenced documents to ten days’ detention for chaining him- self to a metal pole while campaigning In a decision of 17 April 201365 SAC in support of a candidate running for upheld SRAC’s decision to repeal the re- mayor in Vratsa and for using a loud- fusal of the Ministry of Economy, Energy speaker to say that that the officials then and Tourism to provide a copy of one of in power were corrupt. ECtHR conclud- its opinions and of the associated docu- ed that the applicant was expressing ments. According to the opinion, the ac- his political opinion and in this respect tions of nuclear physicist Georgi Kotev was taking part in, and contributing to, and of the Anna Politkovskaya Free a public political debate. In the Court’s Speech Association had cost Bulgaria’s budget BGN 2 million (EUR 1 million) opinion, despite being provocative, the spent on maintaining a positive image applicant’s statements were not particu- of Bulgarian nuclear energy production. larly shocking or calumnious. The Court The court noted that whether the appli- held that the Vratsa Regional Court had cant is requesting access to the specific not compared correctly the alleged se- physical carrier of the information or to a verity of the applicant’s transgression description of the information has no rel- and his right to freedom of expression, evance to the obligation of providing it. and therefore held a violation of art. 10.

64 Decision No. 3858/10.06.2013, SRAC, Second Section, Panel 32, on administrative case No. 739/2013. 65 Decision No. 5374/17.04.2013, SAC, Fifth Section, on administrative case No. 7662/2012. 32 Conditions in places of detention

Prisons and prison dormitories By 31 December 2013, there were a total of 8,834 inmates in Bulgarian prisons. Figure 1 below shows the number of inmates in prison and prison dormitories by 31 December, by year. “We can’t afford the It is apparent that this number of inmates is a record low since 2000. There is a 659 luxury to pay for drop compared to the previous year, considerably more than in 2012 compared to 2011 when the number was reduced by 392. Out of the total, 73 inmates are minors lawsuits and who have been convicted or whose conviction is pending. compensations and The reduced number of inmates has resulted in a considerable alleviation of living not see this. We conditions, albeit not in all prisons. For example, the number of inmates in the pris- need to change the ons in Lovech and Pazarzhik decreased significantly by the end of 2013. At the same physical conditions, time, in other prisons such as the one in Burgas, the trend was the opposite, i.e. the number of inmates increased despite the existing overpopulation. In Burgas, during but to do so, different periods at the end of 2013 the main building alone was home to 950 to we need 1,000 inmates, which is almost three times its capacity of 371. This in turn forced significant amounts prison authorities to resort more frequently to the use of three-tier bunk beds, and the living space per inmate in the common dormitories was reduced to less than 1 m2, of money”. as noted by the European Committee for the Prevention of Torture (CPT) in the report on its May 2012 visit.66 The new Enforcement of Sentences and Detention Under Remand Act (ESDRA) (2009) provided for normative acts containing standards on living space, heating, lighting and other living conditions indicators. At the time the executive declared that it would try to solve the issue of prison overpopulation by building a new prison and reconstructing the old ones. The 2010 Programme for the Improvement of the Conditions in Places of Detention set up a three-year deadline to achieve a minimum living space per inmate of 4 m2. At the end of 2012, however, the act was amended

11436 10871 11058

10271 10066 9885 9422 9408 9493 9026 9379 8971 9006 8834

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013

Fig. 1: Number of inmates by 31 December, by year (2000-2013) Source: Directorate General Enforcement of Sentences

66 The report is available at http://www.cpt.coe.int/documents/bgr/2012-32-inf-eng.pdf, § 22. 33 to delay the implementation of the new mates are expected to be transferred to standards until 1 January 2019, with these dormitories, resulting in reduced the explanation that the economic con- overpopulation in the two prisons. ditions did not allow for the provision By the end of 2013 representatives of of the necessary living space. The con- the new government responsible for tinuous neglecting of state penitentiary places of detention had not committed policy, manifested in the blatant failure to findings and comments on the con- to implement the Strategy for the Devel- dition of Bulgarian prisons. The director opment of Places of Detention (2009- general of DG Enforcement of Sentenc- 2015) and the investment programme, By 31 December es, Chief Commissioner Mitko Dimitrov, will most probably result in delaying the was the only one to talk in December 2013, there were a implementation of the living space stan- 2013 about the inherited problems and total of 8,834 dards beyond early 2019. the opportunities to find solutions. In inmates in Bulgarian The implementation of a programme his opinion, Bulgaria would need 1 bil- prisons. for the improvement of prison condi- lion euro to build 10 new prisons that tions began in early 2013 with funding meet the European requirements. “We under the Norwegian Financial Mecha- can’t afford the luxury to pay for law- nism. The approximately 7 million euro suits and compensations and not see granted are used for rehabilitation and this. We need to change the physical repair works in certain prisons. Most conditions, but to do so, we need signif- 67 of the funds, some 5 million euro, are icant amounts of money”. allocated for repair and construction In the spring of 2013 the deputy min- works in two prison dormitories in the ister of justice in the caretaker gov- Burgas and Varna prisons; the condi- ernment, Dimitar Bongalov, made the tions in these facilities were most often following statement in a TV7 video en- criticized by domestic and international titled Violence in Prison: “The Bulgarian human rights organisations. The work is society needs to decide whether we as expected to be completed within three taxpayers are going to pay compensa- years. Upon completion, some 600 in- tions (including for cases at the Europe-

1691 1640 1082 707 719 683 570 563 348 389 542 380 501 272 269 224 348 352 364 273 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013

defendants accused

Fig. 2: Number of defendants and accused in prisons by 31 December, by year (2004-2013) Source: DG Enforcement of Sentences

1853 1665 1568 1653 1415 1169 905 960 1029 835

2009 2010 2011 2012 2013

open-type closed-type

Fig. 3: Number of inmates in open and closed-type dormitories by 31 December, by year (2009-2013) Source: DG Enforcement of Sentences

67 http://www.vesti.bg/bulgaria/politika/za-10-novi-zatvora-v-bylgariia-sa-nuzhni-okolo-1-mlrd.-ev- ro-6000545 34 an Court of Human Rights), and I assure Most of the inmates are serving multi- you that the amounts are not insignifi- ple sentences, many of them for multi- cant (for example, 12,000 Euro to an in- ple small property offences. For these mate serving a life-sentence because he inmates, theft is a way of life and there had no access to sanitary facilities). We are no working programmes that could could build sanitary facilities for such positively affect these inmates, pull an amount, but when we don’t have them out of the crime circle and re-in- it in the budget, we have to pay it as tegrate them in society. In such cases As in 2012, foreign compensation. I know that there are pri- isolating them in prison in order to pro- nationals serving orities but it’s about time…for so many tect society has rather the function of sentences in the years, for a century, we have not built a placement in a social institution, while Sofia prison new prison”.68 the correctional function remains in the continued their While the opinions of the two peniten- background. tiary experts coincide, apart from the With regard to information that the cas- protests. activities financed by the Norwegian es of violence between inmates and of Financial Mechanism there are no other use of force and restraint by the guards significant initiatives for improving the in several prisons, in April 2013 the dep- general conditions in Bulgarian prisons. uty minister of justice, Dimitar Bonga- The reduction in the number of inmates lov, found lack of active work in the DG in 2013 was coupled with a reduction Enforcement of Sentences reports and of the number of the defendants and in the 2013 work plan. As a result, and the accused in prisons, an indicator of in line with the CPT recommendations faster work on penal cases in the pre-tri- for zero tolerance towards the abuse of al and trial phase. Fig. 2 above shows inmates, he recommended the develop- the number of defendants and accused ment of a strategy on the prevention of in prisons over the past ten years. inter-prisoner violence, the introduction of a special registry for the use of force One of the problems faced by the Bul- in order to ease on-going oversight, as garian prison system arises from the well as the provision to the competent lack of closed-type dormitories. In con- authorities of a list of all cases of use of sistency with art. 60, para 1 of ESDRA, force in places of detention. By the end they are used to accommodate the of the year, this registry had not been same categories of inmates that are ac- created. commodated in main prison buildings. Realizing that the existence of more After receiving information about the such dormitories would reduce prison beating of a group of inmates, in Octo- overpopulation, the administration initi- ber 2013 BHC researchers visited the ated efforts to build or transform build- Sofia Central Prison and talked to the ings into such dormitories. As a result, victims - eleven inmates from the con- a closed-type dormitory was opened at victed foreigners’ group. The incident the Pleven prison in 2012, with similar occurred when one of the foreigners facilities scheduled to become opera- failed to comply when a prison guard tional at the prisons in Varna and Bur- ordered them to step out of the cell for gas upon the completion of the works. roll call. According to them, they did Figure 3 above shows the number of not understand the order. The evidence inmates accommodated in open and found by BHC’s verification proved be- closed-type dormitories over the past yond any doubt that force and restraint five years. had been used against the inmates: some of them had bruises. Even if the The increase for the third consecutive use of force was lawful, it was definite- year of the number of inmates in closed- ly disproportionate. In terms of the use type dormitories proves the necessity of restraint, the specific situation does of having more such dormitories built not correspond to any of the hypothe- within the Bulgarian prison system. ses under art. 114 of ESDRA that allow

68http://tv7.bg/%D0%96%D0%B5%D0%B3%D0%B0/%D0%92%D0%B8%D0%B4%D0%B5%D0% BE/%D0%9D%D0%B0%D1%81%D0%B8%D0%BB%D0%B8%D0%B5-%D0%B2-%D0%B7%D0%B0 %D1%82%D0%B2%D0%BE%D1%80%D0%B8%D1%82%D0%B5-_l.67_i.9724265.html#.UueaR- vuxXGg, aired on 28 April 2013. 35 the use of restraint. It was therefore un- with the Union of Prison Staff in Bulgar- lawful. The team of the National Preven- ia. According to the agreement, prison tive Mechanism with the Ombudsman staff salaries are to be raised by 5%. The of the Republic of Bulgaria came to the union’s chairperson said that the agree- same conclusion. ment was the result of four years of waiting, and this is the first Ministry of Prison disciplinary practices have been Justice team that paid attention to staff subject to criticism on multiple occa- demands and accepted them. sions due to their arbitrariness and the lack of judicial oversight on imposed punishments. With the exception of Investigation detention centres solitary confinement, all other statutory Remand is the most severe measure punishments are imposed only by the of restraint and is sometimes used to administration, without independent cover procedural duress against defen- oversight. dants who are not cooperating with the The increase for the The medical services in places of deten- authorities in the pre-trial phase. In this third consecutive tion continue to be separated from the respect, the practices in imposing this national healthcare system in terms of measure need to be reconsidered, so year of the number facility standards, administration, scope as to provide guarantees that some de- of inmates in closed- of the medical check-ups, reporting, fendants will not be kept as hostages. type dormitories prophylactics and prevention. The grow- The extremely severe conditions at the ing number of inmate complaints with investigation detention centres encour- proves the necessity regard to the low quality of medical ser- age the use of this measure as a means of having more such vices is proof of this. The main issues of pressure on defendants and to re- dormitories built arise from the insufficient staff and the duce their chances of preparing for a within the Bulgarian lack of funds for the provision of the competitive trial. The permission regime necessary volume of medical services. for the defendant’s meetings with rep- prison system. The administration’s efforts to prevent resentatives of human rights, religious drugs from being smuggled in prison and other organisations and communi- have not put an end to this practice, ties, as stipulated by art. 253 of ESDRA, which results in the proliferation of HIV is another barrier to independent over- and hepatitis behind bars. The system sight aimed at preventing arbitrariness faces another problem due to the lack in the pre-trial and the trial phase of the of independent external oversight on penal process. sanitary and hygienic conditions, which By 31 December 2013, only 746 indi- give rise to many inmate complaints. viduals were detained at investigation As in 2012, foreign nationals serving detention centres; of them, only 15 sentences in the Sofia prison continued were minors. Figure 5 below shows the their protests. If in 2012 they protest- number of defendants in investigation ed against disrespectful treatment, bad detention centres by year. living conditions and the lack of clear The reduction in the number of defen- rules on regime changes and release dants by one quarter over the previous on parole, 13 citizens of Algiers, Rwan- year corresponds to the drop in the da, Syria and other countries went on number of inmates in prisons. On the a hunger strike in April 2013 to pro- background of the inherited problems test their sentencing to imprisonment of the detention centres and the lack for illegal border crossing. They asked of any significant changes, this reduc- that their sentences be reviewed with tion has a positive effect on detention the argument that instead of receiving conditions as a whole. The activities refugee status, they are sent to prison. funded under the Norwegian Financial They were sentenced to imprisonment Mechanism covered a small portion of because they already had suspended the investigation detention centres: con- sentences for illegal entry in Bulgaria. struction of a new detention centre and The minister of justice Zinaida Zlatano- probation facility on the plot of a former va signed in March 2013 an agreement military facility in Shumen, as well as re-

36 pairs in several detention centres. How- tres have no outdoor walking facilities ever, these cannot improve the quality and the detainees remain in their cells of the stay at the facilities. for months. Forty-two detention centres remained functional in 2013, including one in Correctional and educational facili- each of the 28 regional cities. As in ties for minor and juvenile offenders previous years, the detention centres in (CBS and SBS) and institutions for border communities (Svilengrad, Pet- temporary accommodation of minors rich and Slivnitsa) were more crowded and juveniles than elsewhere. In early 2013 ESDRA was amended to avoid overpopulation In 2013, four SBS and three CBS func- Children have been at some detention centres by introduc- tioned in Bulgaria. Placement in one locked in premises of these institutions is the most severe ing the possibility to place detainees in used as solitary cells, detention centres in closer proximity to measure imposed on children in conflict the pre-trial or trial area. The living and with law but the measure is often im- where they are the hygienic conditions at the detention posed for social or preventive reasons. physically assaulted centres have been discussed on many While ten or fifteen years ago there (with batons, sticks occasions and include the lack of ad- were more than 30 SBS and CBS, their equate windows and daylight, lack of number has been reduced to the cur- and other items). ventilation, cells located below ground rent seven, and the number of children level (in Gabrovo, Slivnitsa, Petrich and in them has dropped tenfold. The re- Pazardzhik), lengthy stay in extremely duction is due to the clarification of the small cells (Vratsa, Sliven, etc.). Further- placement procedure under the Com- more, some 80% of the detention cen- bating the Anti-Social Behaviour of Mi- tres lack sanitary facilities in the cells nors and Juveniles Act, and to the over- and the detainees have to bang on the all decrease in the number of children in doors in order to be escorted to the lav- Bulgaria. The 2004 amendments con- atories. Outdoor walking facilities are cerned the compulsory court review of available at 16 detention centres only. the imposed correctional measures. The Some of the remaining detention cen- amendments restricted to some extent tres have large indoor rooms for phys- the arbitrariness of placement; never- ical activities, while 18 detention cen- theless, children placed in such facilities 1283 1087

1025 1024 858 862 819 786 788 760 746 723

2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 Fig. 5: Number of defendants in investigation detention centres by 31 December, by year (2002-2013) Source: DG Enforcement of Sentences

37 for social reasons are still mingled with the children, phone calls are made in the children placed for anti-social acts. Theft presence of a staff person who presses is the main reason behind placements, the children to keep conversations short followed by running away from home or and limits the line; daily acts of verbal from a specialized institution, vagrancy, aggression – insults and shouts, often The visits found aggressive behaviour, hooliganism, beg- on a racial basis. In some cases board- numerous violations ging, property damages, etc. ing school staff have forced children to steal and then have manipulated and involving physical Over the year BHC researchers visited abused them to prevent them divulging the following children’s institutions: SBS violence, the names of the instigators. Angel Uzunov in the town of Rakitovo; psychological and SBS Hristo Botev in the town of Podem; The children are often punished with- sexual abuse. St. Cyril and St, Methodius in the village out being told why, without discuss- of Kereka; and the CBS in the town of ing with them the consequences of Straldzha. CBS Hristo Botev in the vil- their behaviour or the reasons behind lage of Dragodanovo was visited in Jan- it. The punishments involve some kind uary 2014. The visits found numerous of labour, usually cleaning of premises violations involving physical violence, (rooms, hallways, bathrooms, lavatories) psychological and sexual abuse. The or maintenance of the areas around the findings include also cases of violence buildings (cleaning courtyards, main- on behalf of staff, as well as among the taining orchards, throwing out heavy children in the boarding schools, which metal garbage containers). The duration are known to the staff. Boarding school of the punishment varies from one-off staff has used violence against children, to several months. Children are also in the form of direct and indirect physi- punished by physical exercise (push- cal and psychological abuse, as punish- ups, squats, course runs). In some cases ment for running away or breaking the children have been deprived of food. established rules of the institution. The researchers found multiple instanc- Examples of psychological abuse, de- es of physical abuse of the children by grading treatment and discrimination in- boarding school staff. There were also clude: impossibility to express a person- cases of exceptional cruelty and gang al opinion – unquestioned obedience beating by staff members. Children is required and fear of consequences have been locked in premises used as is instilled; restriction of contacts with solitary cells, where they are physically the outer world – visits, phone calls, assaulted (with batons, sticks and other group events outside the institution items). There are also numerous exam- (excursions and walks), deprivation of ples of everyday physical abuse (pulling vacation; elimination of the possibility ears, slaps, hits, kicks). Boarding school to file a complaint – complaints torn in principals, teaching advisers, teachers, front of the children and inaction when nurses, guards, custodians, as well as complaints are received; treatment of police officers, have been involved in children as “unreliable” or their separa- physical abuse. Acts of physical abuse tion according to ethnic origin; obvious occur both inside and outside the special treatment of certain students boarding schools. who are granted some privileges – in- The children were also victims of indi- clusion in excursions and walks, better rect psychological and physical abuse, living conditions, turning a blind eye when other children were forced to when they violate the internal rules and abuse them. Staff thus avoids direct re- demonstration of personal attitude by sponsibility for the acts of violence and means of gifts; lack of stimuli for good the potential consequences. Children behaviour, school excellence and per- have psychologically and physically sonal talent; punishments imposed pub- abused other children as punishment licly – children degraded in front of the for violations. others; violation of the right to privacy of correspondence – letters are read and The existence of psychological, physical packages opened before giving them to and sexual abuse between the children

38 at the boarding schools was also found. All SBS and CBS are located in small The violence and the abuse between communities. Their remoteness from the children in the institutions are un- large cities hinders children’s social At this time, controllable. The stronger children pre- adaptation, the provision of quality however, no real vail. Theft, threats, blackmailing, manip- medical services, the hiring of trained actions have been ulation, insults and hits are part of their teaching staff, etc. This reflects in the way of communication. There are also teaching process, making it impossi- initiated towards the several cases of sexual abuse among ble to keep it on a comparable level to creation of a juvenile the children. The sexual contacts be- that in other general education schools. justice system and tween children, including between mi- The placement in SBS and CBS is a the related reform of nors and juveniles, are a fact. No mea- correctional measure of extremely low sures are taken to reduce and eliminate functionality and effect on children’s be- the correctional violence, despite the numerous com- haviour. In fact, the very stay in these educational plaints and the fact that in most cases institutions often encourages deviant institutions behaviour. Realizing the need of chang- boarding school staff are aware of what in the country. is happening. es, the government adopted in 2012 an action plan on the implementation At SBS Hristo Botev in the town of Po- of the State Policy Concept in the Field dem children with serious health prob- of Juvenile Justice adopted a year ear- lems were kept at the boarding school lier. More specifically, it was found that for a long period without adequate teaching at SBS and CBS is pro forma. medical care and systematic monitor- An assumption was made that the intro- ing; as a result, their condition wors- duction of an express prohibition of the ened progressively. Children were often placement of children under 14 years in present and had to provide improvised CBS and SBS and the elimination of the assistance to classmates having epi- possibility to impose sanctions for stat- leptic seizures. Most boarding schools utory violations would result in further have no medical personnel, children are reducing the number of placements by forced into treating themselves; in the at least 40%. The freed resources could best case, medications are dispensed by be used for the development of new Major violations: lack unqualified staff. Many students need services, but not in the buildings of the of respect of centres’ dental intervention, which is not pro- old institutions. Once services prevent- profiles and arbitrary vided. Children with minor mental dis- ing risk behaviour are in place, the CBS placement; lengthy, orders, diagnosed or not, have nervous could be closed. As to the SBS, under breakdowns and manifest aggression. the Concept the placement in these in- often illegal stays The aggression may involve damages stitutions is a measure of last resort that resulting in lasting to boarding school facilities, self-inflict- can be imposed for a minimal duration institutionalisation after an individual needs-assessment. It ed injuries, including suicide attempts, and educational conflicts and clashes with classmates points out that SBS have a place in the and staff. At the same time, there is no juvenile justice system as an alternative deficit of children. adequate professional intervention. At to the juvenile detention facilities. Spe- CBS Hristo Botev in the village of Dra- cific actions are planned under projects godanovo pregnant girls are subjected targeting the closure of the SBS and the 69 to physical and psychological abuse by reform of the CBS. At this time, how- other children, or are witnessing such ever, no real actions have been initiated abuse on a daily basis. towards the creation of a juvenile justice system and the related reform of The leisure time of SBS and CBS stu- the correctional educational institutions dents is totally neglected. The lack of in the country. The continuous inaction structured organised leisure-time activ- of the state with regard to issues that ities, the monotony, the inaction and cannot be disregarded brings up once passiveness in the everyday life of these again the issue of the effectiveness and children gives rise to a sense of dead- the adequacy of the correctional mea- lock, depression, escapes, self-injury, sures, as well as of the existence of SBS conflicts and suicide attempts. and CBS in their present form.

69 Council of Ministers, Action Plan for the Implementation of the State Policy Concept in the Field of Juvenile Justice, available at http://www.justice.government.bg/new/Pages/Bills/Default.as

39 A total of five institutions for temporary and violence operated in the country accommodation of minors and juveniles in 2013. While their number remained (ITAMJ) function as part of the Bulgari- unchanged in comparison to the previ- an Ministry of Interior: in Sofia, Plovdiv, ous year, their capacity was increased Varna, Burgas and Gorna Oryahovitsa. from 128 beds in 2012 to 145 in 2013. They accommodate children who have BHC monitoring of the crisis centres in committed anti-social acts, children 201370 brought up the following ma- without domicile, vagrant or beggar jor violations: lack of respect of cen- children, or children who have ran away tres’ profiles and arbitrary placement; from compulsory education or involun- lengthy, often illegal stays resulting in tary treatment facilities. The placement lasting institutionalisation and educa- cannot exceed 15 days and is ordered tional deficit of children. Contrary to by a prosecutor. In exceptional cases, the expectations, the Methodology on the stay may be extended to up to two the Delivery of the Crisis Centre Social months. The above-mentioned State Service, adopted in 2012 by the State At SBS Hristo Policy Concept in the Field of Juvenile Agency for Child Protection (SACP) and Botev in the town Justice includes a proposal to have the the Social Assistance Agency (SAA), ITAMJ transformed into crisis centres did not bring a change of the status of Podem for children with risk behaviour, based quo and remained an advisory, which is children with on specific criteria and under judicial not respected by the institutions in their serious health supervision. Although the police consid- decision-making process. This is why er the placement of children in ITAMJ the methodological recommendation problems were a protective measure, in essence it of- that placements be restricted to three kept at the board- ten has penal purposes. The normative months and extended to the statutory ing school for rules on the placement in these institu- maximum of six months only in press- a long period tions contradict the Child Protection Act, ing cases is not observed. No measures which stipulates that the placement of were taken to change the placement without adequate children in a specialised institution, such procedure. In reality, court-ordered medical care and as ITAMJ, is ordered by a court. It also placement occurs within two or even systematic contradicts the international standards three months of the date of the actual due to the impossibility to appeal the administrative placement (called tem- monitoring. placement and the lack of procedures porary placement). In most cases the for legal counsel at the time of deten- court does not recognise the time spent tion, during the stay or after the mea- in a crisis centre prior to the date of the sure is imposed. Yet another violation court decision, thus increasing the du- arises from the fact that the children ration of the actual stay to eight or nine are deprived of education and cannot months, which is a blatant violation of attend school during their stay at ITA- the law. This is not only unacceptable MJ. At the end of 2011, in the decision from a legal point of view, but also has on the case A. and Others v. Bulgaria, a proven negative effect on the children the ECtHR held that the placement of because even though the Regulation on one of the applicants, an underage Bul- the Implementation of the Social Assis- garian national in a ITAMJ constitutes a tance Act defines the crisis centres as a violation of art. 5.4 of the Convention, “social service”, placement in them has as the Bulgarian legislation does not al- all the features of deprivation of liber- low access to court to dispute the law- ty. In the case A. and Others v. Bulgaria fulness of the placement. Nevertheless, the ECtHR held that the placement in the authorities have so far not taken the a children’s crisis centre “equals depri- necessary steps to change the rules for vation of liberty under article 5 § 1 of placement of children in these types of the Convention” as it is a “closed insti- institutions. tution” where the residents are subject to “a restrictive regime under constant surveillance” and can be absent “only Crisis centres for children with express permission” and under the 14 crisis centres for separate accommo- condition of being accompanied by a dation of children victims of trafficking social worker. In case of absence with-

70 See Right to liberty and security of the person. 40 out permission, the police are sent to words, a crisis centre is a place where search for the children and return them specialised assistance is provided. In in the centre. reality, however, a child does not need to be in a crisis situation in order to be In individual cases children were placed In the past five years placed in a crisis centre because there in a crisis centre without a court order the crsis centre is no such statutory requirement. This and for the maximum duration possible completely undermines the purpose of service began to (6 months). In the above-mentioned the crisis centres. Presented as a “social case, the ECtHR expressly held that the resemble a place for service providing for everyday needs”, placement in a crisis centre without homeless children. the crisis centre is used to fill in all gaps court order is a flagrant violation of mi- in the childcare system. In the past five nors’ and juveniles’ right to liberty and years the service began to resemble a security. Irregularities that constitute vi- place for homeless children. Children olations of children’s rights are allowed began to be placed in crisis centres not by the courts as well. For example, art. only for social reasons, but also for pure- 15, para 8 of the Child Protection Act ly family reasons such as friction in the stipulates: “The child shall have the right family, inability of a parent to deal with to legal assistance and complaint in all problematic child behaviour or even proceedings affecting his rights or inter- conflict due to disapproval of a sexual ests”. BHC could not find a single place- partner by a parent. Crisis centres are ment, in which legal assistance had sometimes used to place children with been offered. Sometimes even children serious health problems who need med- at the age of 10 were not summoned to ical care, although they have no medical court during the review of their place- staff. At any point in time, a crisis centre ment, despite the fact that the law ex- may be inhabited by children who were pressly mandates that they be heard. victims of violence and violent children, Furthermore, these children are not even small children and juveniles, which al- told that a hearing has been scheduled lows for conflicts and abuse of vulnera- or held, or what the result was. ble children. The crisis centre specialisation stipulat- The Social Assistance Directorates are ed by the methodological guidelines did unable to cover all children at risk and not materialize in 2013. The only exam- work with them, due to which many ple of a purely specialised centre was potential users of the crisis centre ser- the crisis centre set up in Plovdiv at the vice cannot make use of it. The fact that end of 2012 for children of deviant be- some children are kept at crisis centres haviour and children in conflict with the just because there is nowhere else to law. However, its special profile is disre- put them is yet another indication of the garded by the placing bodies. Accord- deficiencies in the social assistance for ing to the methodology, “a crisis centre children and the lack of sufficient alter- is a set of services for children and indi- natives. Where will the children be sent viduals who are victims of trafficking or after the expiration of their stay at the of another form of exploitation, to help crisis centre is a question that often re- them deal with a crisis situation and mains unanswered throughout the stay, overcome the consequences of traffick- with the decision being made at the last ing, violence or exploitation”. In other possible moment.

41 Protection against discrimination

2013 put to a serious test the protection of minorities against racial violence and discrimination. No progress was made with regard to the protection of the rights of other vulnerable groups too.

Public xenophobic speech Anti-Semitic hate speech was used in a TV7 broadcast when rap singer Misho Shamara, in the capacity of informal leader of government supporters, called former minister of finance Simeon Dyankov “the most incompetent Jewish piece of trash”. Neither the anchors, nor later the authorities condemned in any way the hate speech, which made the American Jewish Committee to make a special statement expressing its concern with the “emergence of anti-Semitism on the Bulgarian political scene”. The xenophobic The Council on Electronic Media published a short and general declaration calling rhetoric with regard (without a specific reference to the case) the journalistic guild to decisively condemn to the Syrian refugee statements that can be qualified as hate speech.71 wave caused a Using xenophobic speech amidst the refugee crisis in the fall of 2013, the Ataka party contributed actively to the creation of a hostile and threatening environment series of violent for the ethnic minorities in Bulgaria, including refugees and asylum seekers. Through attacks against media owned by the party – the Ataka newspaper and the Ataka TV station – party people of darker members presented the Syrian refugees as a threat to national security, calling them skin colour. “cannibals”, “mass killers”, “Islamic fundamentalists running from justice” and “lying to the authorities”, “disgusting lowlife primates running from Syrian justice” who “have begun to steal, to assault” in Bulgaria and will begin “to rape and cut off heads”.72 In connection with this, BHC is representing a group of individuals of Syrian origin residing in Bulgaria in a complaint before the quality body against the MP Magdalena Tasheva and the Ataka political party as the owner of the media.73 Party leader Volen Siderov insisted in many public appearances and rallies that all illegal immigrants be immediately expulsed, that the Bulgarian-Turkish border is closed and that no “alien” is allowed on Bulgarian soil which “needs to be preserved for the Bulgarians”.74 These manifestations remained unpunished. In early November the leader of another neo-totalitarian party, VMRO, at a rally in So- fia called on the citizens to get organised and armed and to “cleanse” the city of illegal immigrants. Upon a BHC alert to the prosecutor general,75 the prosecutor’s office initiated pre-trial proceedings but no charges were pressed by the end of the year. On 5 November 2013 the Council on Electronic Media (CEM) published a declaration voicing concern with the “isolated manifestations of hate speech” in “the media […] on the background of the quick, diversified and professional information” presented to the viewers and the listeners on the topic of the refugees in Bulgaria. CEM pointed out that hate speech is unacceptable and that it will take necessary action in line with its competences in all such cases.76 Also in the beginning of November 2013, BHC alerted the prosecution to a banner with a xenophobic threatening message set up by soccer fans during the Levski

71 Declaration of the Council on Electronic Media, http://cem.bg/download.php?id=4703. 72 See Alpha TV, In the Eye of the Storm, with TV host Magdalena Tasheva: http://goo.gl/D2Kfim. 73 See case file 352/2013 before a 5-member extended panel, see also: http://www.bghelsinki.org/ bg/novini/press/single/pressobshenie-bhk-she-predstavlyava-sirijski-bezhanci-po-delo-za-rech-na-omraza- ta-sreshu-televiziya-alfa-i-deputat-ot-ataka/. 74 “Ataka threatening with civil war over refugees, VMRO to protect the Bulgarians “as it sees fit”, 3 November 2013: http://www.mediapool.bg/ataka-zaplashva-s-grazhdanska-voina-zaradi-bezhantsite-vmro---da-zashtiti-balgarite-kakto-nameri-za-dobre-news213097.html 75 BHC alert to the prosecutor general, 5 November 2013: http://www.bghelsinki.org/bg/novini/press/ single/otkrit-signal-do-glavniya-prokuror-otnosno-prestpleniya-na-predstaviteli-na-vmro-bnd-i-drugi-for- macii/ 76 Council on Electronic Media, Declaration of 5 November 2013: http://www.cem.bg/download. php?id=4908. 42 (Sofia) – Pirin (Gotze Delchev) game ordinated with the police and law en- held in Sofia on 3 November 2013. Ac- forcement bodies, and that they “will cording to media reports, Levski fans not allow individuals to enforce order displayed large banners that were vision the streets of Sofia or the open man- ble from a distance saying: “Refugees or ifestation of such behaviour”.80 runners away [Bulgarian pun with the The xenophobic rhetoric with regard to word ‘refugee’] - whatever”, “Blood will the Syrian refugee wave caused a se- be shed on our lands” and “Death to all ries of violent attacks against people of refugees”.77 darker skin colour. Several cases of ra- In December 2013 BHC send an alert cially-motivated or xenophobic violence against the television anchor Albena occurred in Sofia starting in November Vuleva and Evrokom National Cable 2013. The violence was reportedly Television Ltd. in connection with two spurred by an Algerian immigrant who broadcasts of the TV show “PSYCHO on 2 November 2013 attacked and Dispensary” aired on Evrokom TV on wounded a 20-year-old shop assistant 25 October and 1 November 2013. In at her workplace. The cases of violence them Albena Vuleva makes insulting that were reported in the media include: and degrading qualifications and ste- A young man and a child of Roma reotypes all foreigners in Bulgaria, origi- • origin were attacked in broad day- nating from the Middle East and Africa, light close to the National Palace of and well as Roma and Islam-professing Culture in downtown Sofia. Accord- individuals living in the country. She in- ing to the media, the attack was per- stils feelings of fear, repulsion and ani- petrated by skinheads. The assault mosity to these three groups.78 stopped upon the intervention of a group of several passing-by mothers Racially motivated violence with children, who were later chased 81 The creation of “citizen patrols” by na- by the skinheads; tionalist parties and movements in • A young Nigerian was attacked mid-November set a dangerous prece- while riding a bus in Sofia;82 dent. According to the leader of the Na- tional Unity Party, Boyan Rasate, these • A 17-year-old Syrian boy was atta- were “initiated on the basis of legitimate cked and stabbed in the vicinity of a 83 self-defence” with the purpose of “iden- refugee centre; tifying and notifying about suspicious • A woman from Cameroon was at- individuals” by looking for irregularities tacked in broad daylight at a bus in Sofia’s downtown areas where immi- stop;84 grants, refugees and other problematic, A black youngster, a Bulgarian of in the opinion of the patrol organisers, • African origin, was assaulted and individuals gather.79 It was not until 25 punched by three men on a tram;85 October that the Interior Ministry and SANS announced in a joint statement • A young ethnic Turk was baer- to the media and the prosecutor’s of- ed with iron clubs and chains in fice that the formation of the so-called downtown Sofia (leaving him in a “citizen patrols” has in no way been co- life-threatening condition) by five

77 See for example: http://www.dnevnik.bg/sport/2013/11/04/2174678_levski_e_zaplash- en_ot_pone_25_hil_lv_globa_zaradi/ 78 See case file no. 453/2013 of the Commission for Protection from Discrimination, 5-member extended panel. 79 “Boyan Rassate: We got permission from the Sofia Directorate of the Interior to organize citizen patrols”: www.24chasa.bg/Article.asp?ArticleId=2445484. 80 Joint Media Communication of the Prosecutor’s Office, the Ministry of Interior and the State Agency for National Security, 25 November 2013: http://prb.bg/main/bg/News/4203/. 81 “Skinheads attack Roma in front of NDK, mothers with children intervene”: http://btvnews.bg/ article/kriminalno/skinari-napadat-romi-krai-ndk-maiki-s-detsa-se-namesvat.html. 82 “Skinheads attack Nigerian on bus no. 72”: http://novinar.bg/news/skinari-napadnaha-ni- gerietc-v-avtobus-72_NDQ1NTs5NQ==.html. 83 “17-Year-Old Syrian attacked in front of the Voenna Rampa camp”: http://www.dnevnik.bg/ bulgaria/2013/11/04/2175231_17-godishen_siriec_e_napadnat_s_noj_pred_lagera_vuv/. 84 “Attacked Cameroonian woman was waiting for her permanent residence permit”: http://www. dnevnik.bg/bulgaria/2013/11/08/2178061_napadnatata_kamerunka_e_ochakvala_dokumen- ti_za/. 85 “18-year-old boy assaulted in downtown Sofia”: http://goo.gl/48dMGT 43 men; shortly before this, the men European Institute, a Pomak organi- had tried to enter a hostel accom- zation. A total of five individuals were modating asylum seekers, but the questioned on 12 and 13 August with residents repelled the attack;86 regard to a report on the discrimination against the Pomaks, which the organ- • A Mali teenager was assaulted isation had developed and sent to the severely;87 European Commission, as well as with • An Iraqi citizen was beaten by regard to a book published by the In- three men;88 stit ute’s chairman, Efrem Mollov. The questioned individuals claim that the • Two Syrians and a Lebanese Palestinian were assaulted by a agents chastised them for drafting a re- large group of men armed with cold port that was damaging to the national steel.89 interests. They were not told in what capacity they were being summoned, just that this was not an interrogation, but a Discrimination against minority “conversation”.92 Such actions are based community organisations in on art. 20, para of the SANS Act.93 The Bulgaria occasion was a signal by a reader of Over the year, organisations of the Mace- the Duma daily, the official publication Despite the rec- donians and the Pomaks were subject- of the ruling Bulgarian Socialist Par- ed to discrimination and repression by ty, who happens to be former head of ommendations of police and judicial authorities, which vi- the Paediatrics and Medical Genetics several Council of olated their fundamental human rights. Department of the Plovdiv University Europe bodies, the Despite the recommendations of sever- of Medicine. The media reported that al Council of Europe bodies, the official upon reading an article in this newspa- official state insti- state institutions continue to deny the per, he notified the prosecutor’s office tutions continue to identity of the Macedonians and the about the “anti-Bulgarian provocations deny the identity of Pomaks. The new foreign minister Kris- and anti-state activities” of the Pomak Institute.94 The Plovdiv shop of the Insti- the Macedonians tian Vigenin said in June that there is no Macedonian minority in Bulgaria.90 tute’s chairman, Efrem Mollov, was bro- and the Pomaks. In April the Sofia Court of Appeals once ken into in December. He claimed that again refused to register a Macedonian this was an act of intimidation.95 organisation, the Macedonian Club for Ethnic Tolerance. The court pointed out Case law of the Commission for in its arguments that “a Macedonian Protection against Discrimination ethnic minority does not exist in Bul- (CPD) with regard to the protected garia”, and that the promotion of such a ground of race/ethnic origin minority “is targeted against the unity of In 2013 the Court of Justice of the the nation, which is inadmissible under European Union ruled on case No. art. 44, para 2 of the Constitution”.91 С-394/11, initiated by a request for pre- In August SANS agents summoned for liminary ruling by CPD. In September questioning members of the Pomak CPD submitted a request for interpre-

86 “Shop assistant battered, assailants took him for a refugee”: www.monitor.bg/bin/marti- cle?id=407297 87 “Mali immigrant assaulted in Sofia”: http://novanews.bg/news/view/2013/11/11/61715 88 “Three batter an Iraqi at the Stamboiliyski Mall”: http://offnews.bg/ news/%D0%91%D1%8A%D0%BB%D0%B3%D0%B0%D1%80%D0%B8%D1%8F_1/%D0% A2%D1%80%D0%B8%D0%BC%D0%B0-%D0%BF%D1%80%D0%B5%D0%B1%D0%B8%D1 %85%D0%B0-%D0%B8%D1%80%D0%B0%D0%BA%D1%87%D0%B0%D0%BD%D0%B8%D 0%BD-%D0%BA%D1%80%D0%B0%D0%B9-%D0%BC%D0%BE%D0%BB%D0%B0-%D0%B- D%D0%B0-%D0%A1%D1%82%D0%B0%D0%BC%D0%B1%D0%BE%D0%BB%D0%B8%D0%B9%D 1%81%D0%BA%D0%B8_266306.html. 89 “The three detained for the assault on the Syrians released”: http://www.dnevnik.bg/bulgaria/2013/12/03/2195703_trimata_zadurjani_za_poboia_nad_siriici_sa_pusnati_ot/ 90 “Vigenin: No Macedonian minority in Bulgaria”, Presa daily, 4 June 2013, 7:13 p.m., available at: http://pressadaily.bg/publication/16427-%D0%92%D0%B8%D0%B3%D0%B5%D0%BD%D 0%B8%D0%BD:-%D0%92-%D0%91%D1%8A%D0%BB%D0%B3%D0%B0%D1%80%D0%B8%D1 %8F-%D0%BD%D1%8F%D0%BC%D0%B0-%D0%BC%D0%B0%D0%BA%D0%B5%D0%B4%D0% BE%D0%BD%D1%81%D0%BA%D0%BE-%D0%BC%D0%B0%D0%BB%D1%86%D0%B8%D0%B- D%D1%81%D1%82%D0%B2%D0%BE/. 91 SCA, Decision No. 515 of 11 April 2013. 92 See “SANS harasses yet again members of the Pomak European Institute”, 14 August 2013, available at: http://europomak.com/?p=1197. 93 Art. 20 (1) Search operations shall be conducted by ... 1. taking depositions from citizens. 94 http://www.duma.bg/node/43159. 95 See http://btvnews.bg/article/kriminalno/magazinat-na-efrem-mollov-razbit-v-plovdiv.html. 44 tation96 of Council Directive 2000/43/ “niggers” does lead to a more degrad- EC of 29 June 2000 implementing the ing, unequal treatment [of black football principle of equal treatment between players] compared to the epithets used persons irrespective of racial or ethnic for the remaining new players; on the origin and of other EU directives with re- other hand, however, it held that “it is gard to the practice of CEZ Razpredele- not the word “niggers” that is discrimi- nie Balgaria AD (one of the electrical natory per se, but the title in its entire- distribution companies) to place elec- ty and in relation to the article which tric meters in some Roma neighbour- treats individuals of white and black hoods at a height of 7 meters instead of skin colour differently”. The Commission the standard 1,6 meters. In a decision ruled that the newspaper had commit- of 31 January 201397 the Court of Jus- ted direct discrimination on the basis of tice held that it does not have jurisdic- the “race” (skin colour) protected class, tion to rule on the request for a prelim- recommended to the newspaper man- inary hearing submitted by CPD since agement to adopt internal rules to pre- the Commission is not a “jurisdiction” vent unequal treatment, accompanied under article 267 of TFEU because its by respective sanctions, but did not im- decisions are similar in substance to an pose a fine. CPD may be criticized for its administrative decision and do not have approach to the case, as this is a case a judicial nature. of harassment of people of black skin colour who were being called “niggers”, CPD 2013 case law with regard to an insulting word when applied to a race/ethnic origin was marked by cau- person even without context. tion. The cases in which CPD ruled in favour of the applicants under “ethnic In another case, CPD did not find the origin” grounds include: a case of ha- word “Gypsies” insulting. It was estab- rassment and instigation of discrimi- lished beyond any doubt that at a meet- nation where poor relations between ing on 2012 budget cuts the chair of neighbours resulted in the posting of the Kavarna Municipal Council made a abusive posters in the neighbourhood statement (which has not been quoted appealing to “Please, help us kick the in full in the case decision): “…neither Gypsies out of the Pavlovo neighbour- the honourable, I wouldn’t say Roma, I hood”;98 an internet media fined by CPD would directly say Gypsies, and if some- for allowing abuse due to its failure to one wants to sue me, let them sue remove racist comments to an article me…”. This statement offended the ap- it had published.99 CPD held that by plicants and the witnesses questioned naming the file containing the 2012- in the case who were working on mi- 2020 Bulgarian National Strategy on nority issues in the municipality and Roma Integration “13NationalStrategy- testified that for them the word “Roma” IntegrateMangali” (derogatory word for defines the ethnic group while the word Roma) and “uploading it like this on the “Gypsies” is insulting. CPD rejected the official website of the Office of the Pres- complaint despite the insult and the ident, had committed a violation of the creation of an insulting environment, grounds of “ethnic origin”.100 accepting that in the context in which it was used, the word “Gypsies” was Over the year CPD reviewed a self-refer- a synonym of “Roma”. CPD ruled that ral report drafted by commissioner Lalo “preference should be given to the free- Kamenov with regard to an article in a dom of expression insofar as the pres- sports newspaper entitled “The new- ence of hostile speech in the statement comers in CSKA: an Italian, a Swede reviewed above was not proven”.102 In and two niggers”.101 On the one hand, another case, CPD established beyond the Commission found that “the epithet doubt that in a court hearing of a pri-

96 Decision no. 205 from 11 September 2013 on case file no. 153/2009. 97 See Judgment of the Court of Justice (Fourth Chamber) of 31 January 2013 on case C394/11: http://curia.europa.eu/juris/document/document.jsf?doclang=EN&text=&pageIndex=0&part=1&- mode=lst&docid=133241&occ=first&dir=&cid=157691 98 Decision no. 204 of 10 September 2013 on case file no. 110/2010. 99 Decision no. 250 of 21 October 2013 on case file no. 201/2011. 100 Decision no. 168 of 8 July 2013 on case file no. 284/2012=101 Decision no. 121 of 5 June 2013 on case file no. 34/2012. 101 Decision no. 121 of 5 June 2013 on case file no. 34/2012. 102 Decision no. 63 of 19 March 2013 on case file no. 76/2012. 45 vate criminal case the plaintiff said with ronment”, CPD denied the need to cre- regard to the defendant: “I can’t be in- ate an environment of ethnic tolerance sulted by a no-name cleaning lady, to be at school age. insulted by a Roma cleaning lady”. CPD In November CPD found that the Mus- did not accept that this statement could CPD 2013 case law lim Sunni Hanafi school in the Republic instigate discrimination on behalf of the of Bulgaria had been discriminated be- with regard to race/ court, especially given the fact that the cause the Sofia Municipal Council has ethnic origin was court acquitted the plaintiff.103 Howev- failed for years to review its applications er, the Commission omitted to check marked by caution. for the allocation of a plot (municipal whether these statements constitute private property) and to issue a permis- abuse under the Protection against Dis- sion for the construction of a Muslim crimination Act. prayer house for the followers of Islam in Sofia.105 The Commission found the Religion existence of “positive unconditional decisions of the Sofia Municipal Council CPD case law in 2013 remained timid granting such permissions to the Bul- with regard to yet another controversial garian Orthodox Church”. CPD held that protected ground, religion. CPD failed to “although based on neutral rules, the protect the right of a 15-year-old girl to actions [of the mayor of Sofia] result wear a headscarf at school as a man- in unequal treatment, which places the ifestation of her religious affiliation.104 religious institution in a less favourable The applicants pointed out that they position due to the fact that the Sofia were Muslims by conviction, and so Municipal Council has not reviewed the was their daughter. This is why in June issue. While there is no formal refusal, 2011 the girl decided to wear a head- In another case, CPD seemingly lawful instructions are used scarf “as the Muslim religion stipulates to cover an actual refusal based on ex- did not find the word the Muslim woman should”. This is how pediency”. The Commission thus estab- “Gypsies” insulting. she appeared on her first school day in lished indirect discrimination, while in the 8th grade. However, on 17 October fact this is a case of hidden direct dis- 2011 the girl was temporary suspend- crimination. ed from attending classes due to a violation of school regulations, accord- CPD took a firmer stance with regard ing to which “students have no right to to protection of religious communities manifest ethnic, spiritual or religious af- in connection with proselytism.106 The filiation by means of their clothes”. The case is related to a public letter sent by Commission pointed out that “for edu- the Municipality of Burgas, containing cation to be secular, students must first information about cases of immoral and foremost be placed in a religiously proselytism conducted by representa- neutral environment; such an environ- tives of certain cults in the municipality. ment cannot be created if students ap- However, the information presented “the pear dressed in line with their religious established cases in a general manner, beliefs”. The Commission therefore making them look like a regular practice found the girl’s suspension from class of the respective religious institutions to be justified. It also held that theoret- and attributing them to each of their ically the applicant had the opportuni- members”. CPD therefore found that the ty to be educated at private schools in defendant, the Municipality of Burgas, consistency with her beliefs. Thus, by guilty of harassment against certain re- making the principle of secular educa- ligious institutions and instructed the tion absolute, CPD demonstrated a total mayor “to provide training to municipal lack of understanding of the discrimina- management and experts with regard to tion against Muslim girls and women. the current legislation regulating the ac- In reality, the applicant is deprived of tivities of registered denominations, as education at an age at which education well as with regard to the rights and the is compulsory. By ruling that it is neces- obligations of their members, including sary to create “a religiously neutral envi- the distinction between an individual re-

103 Decision no. 221 of 18 September 2013 on case file no. 155/2011. 104 Decision no. 109 of 28 May 2013 on case file no. 295/2011. 105 Decision no. 292 of 22 November 2013 on case file no. 336/2012. 106 Decision no. 268 of 1 November 2013 on case file no. 18/2012. 46 ligious follower and the religious group support for their basic needs”. While as a whole”. CPD applied the indirect discrimination test, it failed to recognise such discrim- Discrimination against people with ination. The Commission held, on one disabilities hand, that the plaintiff had not been discriminated against and, on the oth- Bulgaria has still not ratified the Option- er hand, that the Municipality of Sofia al Protocol to the UN Convention on must provide other equal social services the Rights of Persons with Disabilities, targeted exceptionally at people with adopted on 8 December 2008, and the severe disabilities who cannot take an government has not initiated any legis- active part in public life. lative measures to guarantee the rights CPD confirmed its positive case law of under the Convention. previous years with regard to protection In October people with impaired vision of the rights of people with disabilities organised a symbolic protest in Sofia in healthcare. In July CPD ruled that against the inaccessible architectural in certain cases the state psychiatric environment: the generally inaccessible hospitals are objectively incapable of and dangerous streets and sidewalks meeting the established medical stan- and the fact that only 10% of all traffic dards because the necessary financial lights are equipped with sound warn- resources have not been provided.109 ings lead to tragic incidents with people The Commission found that the minis- with impaired vision.107 ter of healthcare, in his capacity of body implementing the state healthcare poli- In its case law, CPD took a decisive CPD confirmed its rights-protection stance when protect- cy, has committed direct discrimination ing the right of people with disabilities on the grounds of disability by failing positive case law of to equal treatment. Over the year CPD to take all possible and necessary mea- previous years with sures to provide individuals in need of ruled on two independent complaints regard to protection against the point system established in treatment at state psychiatric hospitals the Ordinance on the Provision of the access to the highest achievable stan- of the rights of Assistant for an Independent Life Social dard of healthcare. CPD instructed the people with 108 Ministry of Healthcare not only to pro- Service (by 19 July 2011). People disabilities in with officially established 100% inca- vide the state psychiatric hospitals with pacity are excluded from the service, the necessary financial resources, but healthcare. while people with significantly lower to also initiate the necessary actions to incapacity are included. This is due to create a single official registry of people the fact that the point system gives a with mental disabilities, as required by significant advantage to applicants who art. 147a of the Health Act. In July in a are already participating in some kind complaint by the mother of a child with of social activity. The plaintiffs pointed multiple disabilities, CPD found that by out that the system thus puts at a dis- not including in the lists under art. 35a advantage those applicants who due of the Integration of People with Disabil- to their severe health condition cannot ities Act (IPDA) of all aids, equipment work and study. CPD held that “candi- and medical products needed by the date users (as people in a disadvan- children with children’s cerebral palsy, taged position) are not differentiated and by setting limits on supplying the on the basis of the type of disability, items, the minister of labour and social but mostly on the basis of their proven policy has committed discrimination on social activity (participation in work or the grounds of disability under art. 2 of study educational activities). The specif- the Act by refusing to provide reason- 110 ic nature of the services determines the able accommodation. With regard to lawfulness [of the ordinance] but does the same file, CPD also held that the not justify the lack of rational measures minister had committed discrimination with regard to the individuals who need against people of disabilities due to the impossibility for them to mail or submit

107 See http://offnews.bg/index.php/253759/nezryashti-izlizat-na-protest-zaradi-nedostapna- ta-sreda-v-sofiya. 108 See Decision no. 174 of 9 July 2013 on case file no. 83/2012 and Decision no. 53 of 14 March 2013 on case file no. № 27/2012. 109 Decision no. 152 of 1 July 2013 on case file no. 100/2012. 110 Decision no. 138 of 13 July 2013 on case file no. 42/2012. 47 electronically applications for month- of people with disabilities to accessible ly assistance and allowances under architectural environment. CPD found the Family Assistance to Children Act. that the access of people with disabil- In July, CPD held that the minister of ities is made difficult due to the lack of healthcare and the minister of labour architectural accessibility to and inside and social policy had committed di- the Festa Delfinarium building in Var- rect discrimination on the grounds of na,113 as well as to some bank offices,114 disability because they had failed to due to the lack of a restroom and acces- create a regulatory and administrative sible architectural environment in a pet- mechanism to ensure the repair and rol station owned by a large chain115 and maintenance of out-of-warranty cochle- a commercial facility owned by a large ar implants used by individuals with bi- fast food chain.116 To the latter, CPD im- lateral hearing loss, even though these posed the maximum possible fine, BGN implants had already been provided and 2,500 (EUR 1,250). With regard to file placed with state funding. The Commis- No. 204/2010 CPD held that in order sion instructed that this discriminatory to provide for equality, the accessible ar- practice be eliminated.111 CPD estab- chitectural environment means that the lished that the inaction of the minister disabled person should be able to move of healthcare in 2008-11 with regard in a wheelchair to the service counters to his obligations to provide timely and at the bank independently and not with adequate delivery of life support medi- the help of other people, i.e. in the same Bulgaria has still not cations for children suffering from mu- way as other clients. CPD did not accept copolysaccharidosis constituted direct the arguments of the pizza owner that ratified the Optional discrimination on the grounds of dis- accessibility was not provided because Protocol to the UN ability and other protected grounds.112 there was no such obligation at the time Convention on the CPD, however, wrongly reviewed the when the building was designed and issue whether unequal treatment could built (2001) when the requirements Rights of Persons be justified, a test which is inadmissi- imposed by the current Ordinance No. with Disabilities, ble in a case of direct discrimination: 4 of 1 July 2009 did not exist.117 The adopted on 8 “In this case, there is unequal treatment Commission instructed the defending December 2008. with regard to guaranteed fundamental party to take the necessary actions to rights. No hypothetical lawful result or provide people with disabilities access legitimate purpose have been detected to the pizza. In April CPD held that an that could justify the failure to provide employer (a state body) had directly dis- treatment to the children suffering from criminated a person with a disability by mucopolysaccharidosis. Due to the refusing to hire her due to concerns of above, our section shares the opinion not being able to provide the necessary that the unequal treatment could not be working conditions (lift and accessible justified”. Instead of comparing the situ- restroom).118 The plaintiff had stated ation of children with disabilities to that during the job interview that she has no of children without disabilities, CPD is problem with doing her job (involving looking to compare the situation among computer work), that she’s willing to do other individuals with rare diseases, as it and that she is ready to cope with the if it had found that the treatment of lack of access herself, without asking these other individuals is not paid by the employer for help. the state that would justify not paying CPD also took a stance on the right to for the treatment of children with muco- education of children with disabilities. polysaccharidosis. CPD held that the current standards In a series of decisions in 2013 CPD in Ordinance 3 of 27 April 2000 on once again managed to protect the right healthcare facilities in child care estab-

111 Decision no. 134 of 11 June 2013 on case file no. 274/2011. 112 Decision no. 32 of 4 March 2013 on case file no. 207/2008. 113 Decision no. 198 of 9 September 2013 on case file no. 271/2012. 114 Decision no. 93 of 17 April 2013 on case file No. 204/2010 and Decision no. 284 of 18 November 2013 on case file No. 277/2012. 115 Decision no. 302 of 27 November 2013 on case file no. 279/2012. 116 Decision no. 286 of 20 November 2013 on case file no. 280/2012. 117 Decision no. 313 of 6 December 2013 on case file no. 278/2012. 118 Decision no. 83 of 1 April 2013 on case file no. 352/2011. 48 lishments and schools do not provide for bronze. To rule that the difference be- accessible education and effective pro- tween these monetary awards does not tection to children with diabetes at such constitute worse treatment of athletes institutions and to all other children due with disabilities, CPD wrongly excludes to the existing requirement on the min- the grounds of disability in the cases imum number of students enrolled at where discrimination could be justified. the schools as a prerequisite for hav- CPD pointed out that “the comparison ing a medical specialist assigned to of the different directives, as well as the 119 the school. A November 2013 CPD established European and international In a series of decision in connection with discrimina- case law, indicate that they do not al- tion of a child with special needs is baf- low direct discrimination to be justified decisions in 2013 fling.120 It establishes beyond any doubt by the pursuit of a legitimate purpose CPD once again that a school principal had not allowed and proportionality of means when it managed to protect a child with special educational needs is based on intrinsic individual char- to continue his education in the first acteristics, such as race, ethnic origin, the right of people grade, with the explanation that “there and gender, but allows direct discrim- with disabilities to is no other child with special education- ination to be justified with regard to accessible characteristics acquired by the individ- al needs and it is impossible to get a architectural resource teacher”. Instead of holding uals throughout their life. Unlike direct direct discrimination on the grounds of discrimination, there is always a possi- environment. disability, CPD ruled that the plaintiff bility to justify indirect discrimination (the child’s mother) had not presented regardless of the protected grounds. any evidence that the defending party In this case, the grounds of disability had committed discrimination on the stands outside race, ethnic origin and grounds of disability. gender, and therefore potential direct discrimination could be justified, i.e. it In the beginning of the year CPD an- would not constitute discrimination if it nounced its decision on a case of pursues a legitimate purpose, and the self-referral initiated on a report submit- means of achieving it are proportional, ted by CPD member Anelie Chobanova systematic and coordinated and allow to review whether the minister of phys- for its achievement, even if the case ical education and sports had discrimi- falls under the exceptions stipulated in nated against Bulgarian athletes taking art. 7 of the Protection against Discrimi- 121 part in the 2012 London Olympics. At nation Act“. Thus, instead of fighting es- the time CPD initiated its proceedings, tablished social stereotypes, CPD itself the minister of physical education and becomes their bearer by accepting that sports had issued on order for the adop- people with disabilities, and their sports tion of instructions for 2012 according achievements, respectively, are less to which a prize-winning athlete in an attractive and deserve less attention individual sport at the London Sum- than people without disabilities and the mer Olympics would be awarded BGN sports they practice. 200,000 (EUR 100,000) for a gold medal, BGN 170,000 (EUR 85,000) for a silver medal and BGN 140,000 (EUR Gender discrimination. Sexual 70,000) for a bronze medal, while the harassment awards for the London Summer Paralym- In January the Commission held that an pics were BGN 30,000 (EUR 15,000), employer had directly discriminated on BGN 20,000 (EUR 10,000) and BGN the grounds of gender female workers 16,000 (EUR 8,000), respectively. After employed as “electrical substation oper- the initiation of CPD proceedings, the ators”.122 CPD ruled unequal treatment latter were increased significantly, to because the employer had only dis- BGN 150,000 (EUR 75,000) for a gold missed female workers, employing later medal, BGN 120,000 (EUR 60,000) for on less qualified male workers in their silver and BGN 90,000 (EUR 45,000) place.

119 Decision no. 237 of 3 October 2013 on case file no. 336/2011. 120 Decision no. 279 of 14 November 2013 on case file No. 124/2012. 121 Decision no. 10 of 15 January 2013 on case file no. 103/2012. 122 Decision no. 1 of 14 January 2013 on case file no. 218/2011. 49 In one case CPD ruled sexual harass- para 1, item 13 of the Ministry of Interi- ment against a female tram driver or Act, in conjunction with art. 69 of the from her male superior, manifested in Social Security Code; art. 328, para 1, intrusive presence, verbal and physical item 10 in its previous version, and item advances, which offended the plain- 10a of the Labour Code; art. 106, para tiff’s honour and dignity and created 1, item 5 Civil Servant Act, etc.). Instead a hostile, derogatory and threatening of exercising its powers as an equal- environment at her workplace. CPD im- ity body, CPD adhered to court case posed a fine to the employer, too, as the law and rejected the majority of these specially formed committee had failed complaints. Onе of the Commission’s to act on the complaints filed by female arguments was that the age grounds is workers.123 not present because the termination of service occurred due to acquired right Age discrimination of retirement under the conditions stipulated in art. 69, para 2 of the Social CPD accepted unconditionally the posi- Security Code, which in turn stipulates tion of the Council on Electronic Media that the acquisition of this right does (CEM) as evidence that the commer- not depend on a person’s age, but only cial for the Samsung Star 3 cell-phone on the statutorily required duration of aired in the electronic media did not paid retirement contributions.125 In oth- Thus, instead of constitute discrimination against elder- er cases CPD held that there were legal fighting established ly people.124 The commercial shows reasons for unequal treatment, such as, social stereotypes, three women, visibly in their 60s, sitting for example, a selection, which found at a table facing the camera. Looking that the laid-off worker/employee filing CPD itself becomes baffled, one of them is handling a cell- the complaint had performed less satis- their bearer by phone with a sensor display. The CPD factory compared to his co-workers.126 accepting that referral quotes lines from the commer- However, CPD did not manage to ven- cial that make the elderly women look ture beyond seeking a justification for people with stupid, inadequate with respect to mod- the discrimination committed and to disabilities, and their ern reality and unable to fully take part see the discriminatory nature of these sports achievements, in it: “...It’s a radio, girl. And a telephone. provisions per se. It failed to correctly Samsung Star, but for the young ones”. research and conclude that rules intro- respectively, are less The plaintiffs considered the content of ducing a forced early retirement oppor- attractive and the commercial insulting, guying and tunity when a certain number of years deserve less ironic to elderly people. CPD generally of professional experience is reached, attention than people accepted the CEM position, which had regardless of age, constitute direct dis- verified the TV commercial for the Sam- crimination of elderly employees who without disabilities sung Star 3 cell-phone and had not es- could be affected by the implementa- and the sports they tablished any violation of the Radio and tion of this seemingly neutral to the pro- practice. Television Act. According to CEM, the tected ground provision (for an example plot was entirely subjected to drama- of CPD’s reverse logic, see its June de- turgical convention and the actions and cision127). dialogues should not be understood In only one case, lamentably inciden- literally. The Commission accepted this tal, the equality body reversed its own verification as evidence in support of re- negative case law on this issue. The jecting the referral as unsubstantiated. Commission quoted decisions of the Over the year CPD reviewed an alarm- Court of Justice of the European Union ingly high number of complaints by em- (CJEU),128 according to which every ployees and workers who were forced provision in a regulation or collective into early retirement by their employers bargaining agreement that introduces when they had acquired or exercised an independent ground for unilateral their right to retirement (see art. 245, termination of labour or service by the

123 Decision no. 172 of 9 July 2013 on case file no. 111/2011. 124 Decision no. 177 of 11 July 2013 on case file no. 304/2012. 125 Decision no. 225 of 20 September 2013 on case file no. 198/2012 and Decision no. 236 of 1 November 2013 on case file no. 220/2011. 126 Decision no. 118 of 5 June 2013 on case file no. 358/2011. 127 Decision no. 114 of 4 June 2013 on case file no. 76/2011. 128 CJEU decisions in the cases Palacios de la Villa (С-411/05), Age Concern (С-388/07), Europe- an Commission v. Hungary (С-286/12), etc. 50 employer when the worker or the em- provision under art. 245, para 1, item ployee has reached retirement age and/ 13 of the Ministry of Interior Act, so that or has acquired right to retirement for the legislator interprets it only as a sub- age and duration of retirement contri- jective right of the employee and not bution payments, constitutes unequal as an opportunity for the employer to treatment on the grounds of age. Ac- unilaterally terminate the employment cording to the quoted CJEU decisions, of an individual meeting the conditions for this form of unequal treatment (that under art. 69, para 2 of the Social Secu- is, the rule that allows the employer to rity Code”. terminate the employment when the In similar cases at the end of the year, worker has reached retirement age or however, CPD once again refereed to has acquired retirement rights) to not SAC case law and refused to admit However, CPD constitute age discrimination, it has to the discriminatory nature of this pro- be objectively justified by the pursuit of vision,131 holding that these provisions did not manage to a legitimate purpose and the measures suggest exercise of powers on behalf venture beyond taken (that is, the respective rules laid of the administrative body/the employ- seeking a down in the ordinance) should be pro- er within its operative independence, portional to the purpose. which allows for a potestative right to justification for CPD required and analysed statistical terminate employment/contracts. In the discrimination data and concluded that the defend- its decision on file No. 274/2011 CPD committed ing party, i.e. the employer, had neither reviewed a complaint with regard to a and to see the pointed out that the action and the im- Council of Ministers recommendation plementation of art. 245, para 1, item to the heads of administrative bodies to discriminatory 13 of the Ministry of Interior Act pursue initiate actions towards the termination nature of these a legitimate purpose nor had focused of the employment and service con- provisions per se. its argumentation on some hypothet- tracts with the employees of the respec- ical proportionality of the respective tive administrations who had acquired measure and the pursued purpose. and exercised rights to retirement on CPD held that this is sufficient by itself the grounds of retirement contributions to have the rule stipulated in art. 245, and age/right to retirement, and when para 1, item 13 of the Ministry of Inte- the conditions stipulated in art. 68 of rior Act deemed a form of indirect age the Social Security Code are in place. discrimination, since this rule has a dis- The Council of Ministers’ arguments for proportional effect on the different age this measure include the growing num- groups of MoI employees and indirect- ber of employees who had acquired rely places the MoI employees aged 45+ tirement rights, but have preserved their jobs within the executive bodies, as well in a more disadvantaged position than In other words, CPD their co-workers who are aged below as the fact that there are “administrative 45, including everyone who is under bodies with a very high percentage of told the plaintiffs that 41. Insofar as behaviour based on a employees who have acquired retire- the state has the ment rights”. The Commission did not discriminatory legal provision also con- right to discriminate stitutes discrimination,129 the orders of conduct a quality and in-depth analysis the minister of interior on the termina- of the measure and held that its pur- families with many tion of plaintiffs’ employment should be pose was related to the employment children instead of regarded as acts of age discrimination. and labour market policy, which is pro- helping them. Thus, with the decision130 the Commis- portional (although it remains unclear sion held that by dismissing an employ- why). ee when he comes to a specific age, Significant age-related cases, in which the minister of interior had committed CPD held in favour of the plaintiffs, indirect age discrimination against the include the one concerning the ban plaintiff; it instructed the minister “to imposed by the University of Sofia on elaborate and submit for review by the the accommodation at student board- Council of Ministers a bill amending the ing-houses of full-time, doctoral and

129 See Decision no. 2894 of 5 March 2009, SAC, five-member panel, on administrative case no. 15682/2008, and Decision no. 12014 of 18 October 2010, SAC, five-member panel. 130 Decision no. 185 of 23 July 2013 on case file No. 303/2011. 131 Decision no. 269 of 1 November 2013 on case file No. 130/2011. 51 graduate students aged over 32132 and this time, however, the Commission jus- one with regard to the age restriction tified its decision with the incentives for for jobs at the Directorate-General En- the two-child model.135 CPD ruled that forcement of Sentences and the Direc- by focusing on the second child the leg- torate-General Security of the Ministry islator had intended to guarantee the of Justice, according to which candi- simple demographic reproduction of the CPD also took a dates aged over 40 were not allowed to population and to overcome the prevail- stance on the right apply in the competition.133 ing one-child family model, in line with the adopted National Strategy for De- to education of Family status discrimination mographic Development of the Repub- children with lic of Bulgaria (as updated in 2012). In disabilities. The extremely unconvincing arguments other words, CPD told the plaintiffs that with which CPD rejected a discrimina- the state has the right to discriminate tion complaint of the Parents’ Associa- families with many children instead of tion under art. 164, para 1 of the Labour helping them because the demograph- Code.134 This Labour Code provision is ic policy is targeted at providing incen- related to the additional leave to raise tives for the birth of a second child, a child aged up to 2 years and states maybe to some extent for the birth of a that the female worker or employee fourth, but no more. According to CPD, has the right to such leave “to raise the giving birth to more children contradicts first, second and third child until they the targeted two-child Bulgarian family have reached the age of two, and six model, which is the only one that cor- months for every subsequent child”. responds to the goal of incentivising While studying whether there is lawful childbirth in our country, and this goal indirect discrimination, CPD held that cannot be achieved by giving birth to at a first glance one might come to the more children. conclusion that workers and employees with four or more children are at a disadvantage; however, the “provision Application of burden of proof in art. 164, para 1 of the Labour Code statutes does not restrict birth; on the contrary, it In many cases reviewed by CPD the encourages it by providing an additional Commission demonstrated an ever im- incentive to childless workers and em- proving handling of the burden of proof ployees, and to those with one or two statutes. In several cases it reversed it children, to have a child. This incentive successfully and held the existence of is manifested in providing these work- discrimination as the defending party ers and employees with the opportunity could not prove the existence of a law- to take longer paid leave than workers ful reason (i.e., a reason unrelated to the and employees who are raising a fourth plaintiff’s protected class) behind the or subsequent child”. According to CPD, unequal treatment. Since the defend- in this respect the measure was pursu- ing party cannot refute the claims of ing a legitimate purpose related to de- a person with disability that there is a mographic policy, and was proportional causation between the protected class because the three-child demographic and the unequal treatment he was sub- model could result in a positive growth jected to by proving that the selection of the population. Similarly, in Novem- was based on objective criteria and ber CPD held that the amount of the that this selection has resulted in re- one-off assistance paid for the birth of taining the employees who indeed are a child under the Family Assistance Act, better qualified and are working better, and namely BGN 250 (EUR 125) for a CPD held that the defending party had first child, BGN 600 (EUR 300) for a committed direct discrimination on the second child and BGN 200 (EUR 100) grounds of disability by eliminating a for a third and for every subsequent post occupied by a person with disabil- child, is not discriminatory to third and ity.136 subsequent children and their mothers;

132 Decision no. 56 of 14 March 2013 in case file No. 289/2011. 133 Decision no. 208 of 12 September 2013 on case file No. 207/2012. 134 Decision no. 217 of 18 September 2013 on case file No. 228/2012. 135 Decision no. 278 of 14 November 2013 on case file no. 58/2011. 136 Decision no. 223 of 18 September 2013 on case file No. 362/2011. 52 Right to asylum, freedom of movement

2013 marked a significant retreat with regard to the standards on guaranteeing the right to asylum enshrined in art. 27, para 2 and 3 of the Bulgarian Constitution. During the first half of the year the specialised administration, the State Refugee Agency (SRA) of the Council of Ministers, almost completely neglected the existing problems in the field of asylum and international protection. The legal assistance during protection awarding proceedings financed by the European Refugee Fund was assigned completely to a non-profit entity in a manner that caused serious doubt of conflict of interest and links to high-ranking MoI employees. As a result, the representation of the people seeking protection in the administrative phase was formalistic and did not protect their rights and legitimate interests. Social assistance and admission conditions were also provided at the minimum level possible, or even below it. Despite the efforts of the non-governmental organisations working with refugees and of the representative office of the UN High Commissioner for Refugees (UNHCR) to convince the government and SRA in the need for an urgent improvement of the accommodation capacity with regard to the expected increase in the number of new arrivals seeking protection due to the civil war in Syria and the withdrawal of the international forces from Afghanistan, the national institutions completely neglected this need and failed to take any measures to expand the existing and create new refugee centres. The condition of the The number of people entering the country at seek asylum and protection began to buildings, as well as grow steadily in mid-August. 7,144 protection applications were registered in Bulgar- the living conditions ia between 1 January and 31 December 2013. Most of these (4,516 or 63% of all protection applications) were filed by Syrian refugees, followed by persons without in the two centres, citizenship (561 or 7.8%) and people from Afghanistan (310 or 4.3%). In this con- or rather the lack text the reception capacity of the State Refugee Agency, long criticised as extremely thereof, were so insufficient, turned to be absolutely inadequate and below the critical minimum. In critical and less than 25 days, by mid-September, the two existing SRA registration and reception centres in Sofia137 and in the village of Banya, near Nova Zagora,138 and the transit unacceptable that in centre in the village of Pastrogor, near Svilengrad,139 were overcrowded and overload- essence constituted ed to an extent that caused SRA’s complete institutional collapse. The refugee admin- inhuman and istration began to place 8 to 15 asylum seekers in rooms that could accommodate between 2 and 4. In early September, when all possibilities for accommodation at degrading treatment. the existing SRA centres were exhausted, the newly-arriving refugees were “accommodated” in the hallways.140 The lack of any capacity for reception and accommodation at SRA, resulting in having newly-arriving refugees and asylum seekers being accommodated at the 24-hour detention facilities of the Directorate-General of Bor- der Police (DGBP), more specifically at those operated by the Elhovo Regional Border Police Directorate; however, their capacity was also exhausted within several days. Consequently, and despite the submitted protection applications, DGBP began to refer the asylum seekers to the specialised centres for accommodation of foreigners (SCAF) of the MoI’s Migration Directorate in Sofia’s Busmantsi neighbourhood and in the town of Lyubimets. Thus, people seeking asylum and protection, including unaccompanied children, pregnant women, families, elderly people, sick and wounded, were placed in administrative detention facilities for illegal migrants and deprived of their liberty. On 8 October 2013 the Migration Directorate opened urgently a new detention centre for 300 people in the town of Elhovo, which it called “a distribution centre”. The capacity of this SCAF was also exhausted immediately. Thus, in about a month between mid-September and the end of October, a significant number of refugees seeking asylum spent between a few days and several weeks in the court-

137 Capacity: 860. 138 Capacity: 70. 139 Capacity: 300. 140 Bulgarian Helsinki Committee, 2013 Annual Report on Monitoring of Status Awarding Pro- ceedings, 10 November 2013, § 3.1. 53 yard and the adjacent buildings of the be used for accommodation of asylum Elhovo Regional Border Police Director- seekers for free, but the state failed to ate without any food, medicines or a act on his proposal. By the end of 2013, place to sleep being provided by SRA no staff and administrative personnel or another state institution. During that were assigned to the newly-opened time food, clothing, hygienic materials SRA “temporary accommodation cen- and basic medicines were provided by tres”, with the exception of the centre the Bulgarian Red Cross and other char- commandants and the police security itable organisations and associations, personnel. Food, medical services and mainly sourced from donations of com- social assistance were not provided by munity organisations and NGOs, foreign SRA, and the registration, issuance of 7,144 protection and international donors and Bulgarian documents and proceedings of review- applications were citizens. ing and evaluating asylum and protection applications wither did not mate- To address the lack of accommodation registered in Bulgaria rialise or occurred with great delays, capacity, by the end of September SRA between 1 January many being immediately postponed began to urgently create new accom- until the spring of 2014. and 31 December modation facilities. The first of these 2013. Most of these so-called “temporary accommodation In October 2013 the European Asy- (4,516 or 63% of centres” was opened on 18 September lum Support Office (EASO) adopted all protection 2013 in a deserted and dilapidated for- an operating plan to provide logistical mer reformatory boarding school in So- support to Bulgaria in overcoming the applications) were fia’s Vrazhdebna neighbourhood, and serious deficiencies and gaps in the filed by Syrian can accommodate 420 asylum seek- national refugee system. In the end of refugees. ers. A few weeks later, another “tem- November, in response to a request by porary accommodation centre” for 700 the Bulgarian government, the UN High people was opened in a similar dilapi- Commissioner for Refugees Antonio dated building in an abandoned wood Guterres visited the country; UNHCR ur- processing school in Sofia’s Voenna gently provided almost 1 million dollars Rampa neighbourhood. The condition to Bulgaria for direct assistance, care of the buildings, as well as the living and food for asylum seeking refugees. conditions in the two centres, or rather This was an official recognition at in- the lack thereof, were so critical and un- stitutional level of Bulgaria’s failure to acceptable that in essence constituted create an adequate national system for inhuman and degrading treatment.141 providing asylum and protection to peo- The conditions in the next “temporary ple who need them. accommodation centre”, opened on 13 At the onset of the refugee influx in October 2013 in the former barracks in Bulgaria several media, notably the Ata- the town of Harmanli and designed to ka-owned Alpha TV channel, initiated a accommodate 1,450 refugees, turned loud campaign to instigate hatred, dis- to be even worse. The asylum seekers crimination and violence against what were kept closed in the camp and were they deemed unwanted “aliens”. The accommodated in tents and trailers public instigation of hatred, discrimina- without food, water, electricity, heating tion and violence against asylum seek- and sewage. The sanitary and epidem- ers led to a series of incidents in Sofia, ic risks were extremely high. The only in which both foreign citizens and rep- exception was the fourth “temporary resentatives of Bulgarian national mi- accommodation centre”, a 350-person norities were assaulted, threatened and facility opened on 21 October 2013 in insulted on purely racist grounds.142 the village of Kovachevtsi, near Pernik. The following specific issues in the field The buildings and the living conditions of asylum and international protection there were adequate and met the ba- were identified in 2013: sic requirements. In the meantime, the mayor of Nedelino proposed to provide Asylum seekers’ access to territory his own house and the town school to was subjected to severe and growing

141 http://www.bghelsinki.org/bg/novini/press/single/pressobshenie-bhk-prizovava-za-nezabav- nata-ostavka-na-rkovodstvoto-na-drzhavnata-agenciya-za-bezhancite/ 142 For more details, see Protection from discrimination. 54 restrictions in 2013. Over the year, BCCPs but are generally repulsed and 3,519 refugees declared to the DGBP143 refouled. This conclusion is indirectly bodies at the country’s borders that confirmed by asylum seekers in Bulgar- they need protection; of these, 2,943 ia who inform of unsuccessful attempts were adults (2,098 men, 845 women), of their families, located in Turkey, to file 473 were accompanied children (268 a protection application and enter the boys and 205 girls) and 103 were un- country through a BCCP. This practice is accompanied children, all of them boys an extremely severe violation of Bulgar- aged 12 to 18. For another consecutive ia’s international obligations with regard year DGBP had difficulties in providing to the provision of access to territory, immediate and adequate translation for procedure and protection to persons the purpose of registering the protec- who need them. tion applications of these people, most- The principle of not imposing penal- ly due to lack of translation posts in the ties enshrined in art. 31 of the 1951 Border Police and the outsourcing of Convention relating to the Status of translations, which was a considerable Refugees was massively violated by the obstacle that increased the cost of the Despite the positive registration procedure. Furthermore, as prosecution and the penal courts in the amendments regions adjacent to the Bulgarian-Turk- a measure against the influx of new asy- of the national lum seekers in early November 2013, ish border. BHC established such prac- the Ministry of Interior seconded 1,400 tices for the first time in 2010. It was legislation,in reality police officers from all over the coun- not until May 2012, however, that the the legal assistance prosecution provided the results from try and deployed them along the land was not accessible border with Turkey to prevent illegal its internal verification of this issue and immigration. This resulted immediately admitted the necessity of creating a and was not provid- in a dramatic reduction of the number working group for the development of ed to the individuals of people applying for protection at the instructions on the correct implemen- detained at SCAF, tation of art. 279, para 5 of the Penal border: from several hundred per week including protection between August and October 2013 Code, which introduces a non-penalty to 138 in December 2013.144 Such a rule similar to that of art. 31 of the Con- asylum seekers. sharp decline in protection application vention. By the beginning of September over such a short period could only be 2013, there was no development with explained by a wide application of repul- regard to this issue. On the contrary, the sion and refoulement practices, in viola- prosecutor’s offices in the court districts tion of the principle of non-refoulement in whose jurisdiction the Bulgarian-Turk- under art. 33, para 1 of the 1951 Con- ish border falls gradually increased the vention relating to the Status of Refu- number of penal proceedings for illegal gees. The government announced that entry under art. 279, para 1 against in- the wide scale measures for the physi- dividuals who had filed a protection ap- cal protection of the borders were aimed plication, in an evident violation of art. only at preventing illegal immigration 5 of the same provision. The prosecu- and not at asylum seeking refugees. At tion and the courts could thus report a the same time, however, the govern- larger number of cases completed with ment propagated the idea that asylum verdicts or sentences, as the crime un- and protection applications should be der art. 279, para 1 and the following filed only at the respective border cross- of the Penal Code is easy to prove from ing checkpoints (BCCP), a requirement a formal point of view. As a result, the that does not exist in any national or in- share of refugees convicted for illegal ternational legislative provision on refu- entry in violation of art. 31 of the Con- gees. An indicative fact is that only 375 vention and art. 279, para 5 of the Pe- refugees145 were registered at BCCPs nal Code reached 48% of all registered in 2013; given the significantly larger cases in the first half of 2013 alone. In number of refugees registered at land some cases it was found that the con- borders outside BCCPs, this is a clear in- viction occurred with the complicity of dication that the asylum seekers are in the court-appointed lawyers who had fact denied access to territory through agreed to settle cases in exchange of

144 DGBP, Readmission Section, contact point in the Three-lateral Group, 14 January 2014. 145 See below. 55 a guilty plea without duly informing in the autumn of 2013 described above, the people they were defending who the majority of the newly arrived asylum learned that they had been convicted at seekers had the opportunity to official- a later stage of the status and interna- ly file their applications not earlier than tional protection proceedings. the time of their transfer from the border to the administrative detention facil- The above situation deteriorated sharply ities (SCAF) operated by the Migration in the beginning of September 2013 af- Directorate in Busmantsi and Lyubimets ter the dramatic increase in the number and, since the beginning of October, to of persons seeking protection and en- the SCAF in Elhovo. Asylum was sought tering Bulgaria through its land borders. by a total of 5,464 individuals (of which In response to the greater media inter- 5,291 adults and families with children est the prosecutor general announced and 173 unaccompanied children). Asylum seekers’ publicly146 that he is seconding prosecu- 5,353 or 98% of the applications were tors to the prosecutor’s offices in Svilen- access to territory filed at SCAF by people who had been grad, Yambol and Elhovo with the task was subjected to transferred there directly from the bor- to help initiate and conduct penal pro- der. Between September and Decem- severe and growing ceedings against asylum seekers. The ber 2013 the average duration of the restrictions in 2013. massive and public reaction of human detention at SCAF of persons seeking rights organisations and of the associ- protection prior to releasing them and ations of judges and prosecutors made granting them access to refugee proce- the prosecutor general change his po- dures increased from 36 days (January sition towards strict observation of the 2013) to 47 days; the average duration principle of not imposing penalties, in of the detention of protection seekers at line with the Bulgarian and international SCAF thus increased to 45 for the whole legislation. A seminar was held on 18 year. Despite the positive amendments October 2013, on the initiative of the of the national legislation,147 in reality Union of Judges and the National As- the legal assistance was not accessible sociation of the Prosecutors, at which and was not provided to the individuals the representative associations of the Such a sharp decline detained at SCAF, including protection magistrates, together with representa- seekers. This was mainly due to the fact in protection tives of the courts and the prosecutor’s that the National Legal Assistance Bu- application over such offices in Svilengrad, Elhovo, Malko Tar- reau had not planned any funds for this novo and Haskovo discussed the appli- a short period could category of people in its annual budget. cation of art. 31 of the 1951 Conven- only be explained by Furthermore, SRA’s institutional failure tion relating to the Status of Refugees resulted in significantly delayed release a wide application of and art. 279, para 5 of the Penal Code, of protection seeking refugees from repulsion and and the need of finding evidence within SCAF and their accommodation in ref- the penal procedure with regard to the refoulement ugee centres, thus creating conditions application of the rule of not imposing for extended detention, which in some practices. penalties on persons who had entered cases exceeded four to six months. Bulgaria illegally with the purpose of Looking for means of speeding their re- seeking asylum and protection. The lease from SCAF, the protection seekers guild’s recommendations in this respect began submitting declarations giving had an immediate positive effect in up their statutory rights to accommo- practice; as a consequence, the number dation and social assistance during the of protection seekers convicted of ille- refugee procedures148, and declared gal entry dropped sharply in the follow- false addresses, the so-called “external ing months (11 in November and 14 in addresses”. As of 31 December 2013, December 2013). 5,022 protection seekers or 92% of all Asylum seekers’ access to procedures detained individuals who had submitted from the places for administrative de- refugee applications had been released tention of illegal immigrants was also from SCAF, while 442 protection seek- significantly restricted and hindered in ers (8%) remained in detention. 2013. As a result of the developments

146 http://www.dnevnik.bg/bulgaria/2013/09/09/2137176_prokuraturata_reshi_da_otchita_ak- tivnost_s_dela/ 147 Art. 22, para 1, items 8 and 9 of the Legal Assistance Act. 148 Art. 29, para 1, item 2 of the Asylum and Refugees Act. 56 The national legislation was amended proceedings. According to the official in March 2013149 with the introduction statistics153, by 31 December 2013 of the explicit prohibition of involuntary there were 4,567 protection seekers accommodation (detention) of unac- living at external addresses outside the companied foreign children in SCAF, refugee centres at their expense. Since and the introduction of a three-month they have renounced their rights, they maximum duration of the detention of have no right to social assistance in the foreign children accompanied by their amount of BGN 65 (EUR 32) per month. parents. The ban covers a fortiori also Having run out of money, many of them the refugee children seeking protection. become homeless in a matter of weeks. This legislative amendment was a sig- The situation in the newly opened SRA Art. 45e of the draft nificant step forward in the legal stan- centres remained critical until the end is a cause of serious dards governing the detention, even of the year. The government was inca- though by the end of 2013 there was pable of providing even for the basic contradiction and no change in detention practices and needs of the protection seekers, such concern. It both unaccompanied and accompanied as food, medical and social assistance. stipulates that children continued to be detained in vi- Registration was an exception, not a olation of the statutory provisions and rule; the issuance of identity papers protection seeking deadlines. was blocked. All this and the lack of a minors and juveniles functioning national protection system The standards of the status award- can be detained at forced 2,619 protection seekers to try ing proceedings also worsened sig- closed centres. and leave Bulgaria in 2013.154 nificantly in 2013, mostly as a result of the impossibility to organise the due The situation of the unaccompanied procedural actions in consistency with children remained especially worri- the growing number of newly arriving some. For the 20th consecutive year protection seekers. According to the since the establishment of the refugee official statistics,150 a total of 9,325 in- institution, their procedures were held dividuals have filed asylum and protec- without the appointment of guardians tion applications in Bulgaria; only 7,144 or trustees. The presence in the refu- protection seekers, however, have been gee proceedings of the social workers officially registered by 31 December appointed under the Child Protection 2013. The remaining 2,181 protection Act155 was purely formalistic and did not seekers have not been granted access provide the necessary assistance and to procedures, registration and status protection of the legal interests of un- evaluation. This is mainly due to the accompanied children, in contradiction inadequate reception capacity of the with the statutory obligation to protect State Refugee Agency whose activities the child’s best interests. were almost completely paralyzed from The 2013 status awarding rate in Bul- the end of August until the beginning garia was 34%, that is, 2,462 individu- of December. The access to procedures als were granted some form of interna- from the detention places (SCAF) was tional protection within the country. Of significantly hindered and delayed, re- them, 183 were granted refugee status sulting in protection seekers’ renounc- and 2,279 (32%) were granted subsidi- ing rights151 to accommodation and ary protection in the form of humanitar- social assistance in order to speed up ian status due to civil war or wide-scale their release from the SCAF (the prac- human rights violations in their coun- tice of declaring the so-called “external tries of origin. 354 applications (4.9%) addresses”). Their declarations were were rejected, 657 (9,7%) refugee accepted and administered by SRA in procedures were suspended, and 824 violation of the law,152 because it stip- (11.5%) were terminated because the ulates that such renouncement is pos- individuals had left the country. Thus, sible only at the stage of the general

149 Foreigners in the Republic of Bulgaria Act, art. 44, para 9. 150 Seventh coordination meeting, 16 January 2014; see, also: http://www.aref.government.bg/ docs/Refugees_15%2001%202014.doc 151 Art. 29, para 1, item 2 of the Asylum and Refugees Act. 152 Art. 29, para 1, item 6 of the Asylum and Refugees Act. 153 See above. 154 DGBP, Readmission Section, contact point in the Three-lateral Group, 14 January 2014. 155 Art. 15, para 7 of the Child Protection Act. 57 59.5% of all applications were evaluat- tion seeking individuals, regardless of ed, while 39.5% of the proceedings re- their individual characteristics, vulnera- mained unresolved. It should be noted bility, age, health, special needs or other that protection was awarded mostly to applicable circumstances, and regard- refugees from Syria (1,944 individuals less of the stage of their proceedings or 85% of all protection applications: under the Asylum and Refugees Act. As refugee status awarded in 149 cases, a rule, all individuals seeking protection humanitarian status awarded in 1,795 are generally and unconditionally de- cases).156 The protection seekers from tained at closed centres, and placement all other countries of origin were in most in open centres is based on exception cases refused protection in Bulgaria. (argument pertaining to art. 45c, para 2 of the draft). The rule enshrined in The situation of the The legislation in the field of asylum art. 8, para 1 of Directive 2013/32/EU experienced some positive develop- unaccompanied that the member states cannot detain ments in 2013. During the year, the an individual only because he had ap- children remained continuous efforts of the human rights plied for international protection, is thus especially community157 finally resulted in tan- completely reversed. In essence, this gible progress and legislative amend- worrisome. For the approach is almost an identical copy ments to the Legal Assistance Act, and 20th consecutive of the involuntary administrative mea- more specifically art. 22, para 8 thereof, sures imposed on irregular immigrants year since the by which protection seeking refugees prior to having them expulsed from the were identified as a separate and spe- establishment of the country.161 The draft assigns the State cial category of individuals who have refugee institution, Refugee Agency security and police right to legal assistance during the sta- functions, which contradict the main their procedures tus awarding proceedings, both at the purpose of this institution: to hold, in were held without administrative and at the judicial stage. consistency with the Republic of Bul- Also in 2013, the statute of tolerance158 the appointment of garia’s international obligations, proce- was introduced with regard to refugees dures awarding asylum and protection guardians or for whom an expulsion order had been to people who need them and in pro- trustees. issued, whereas the measure cannot tection of their basic human rights and be implemented as a result of judicial freedoms. ban on the grounds of the right to life under art. 2 or to freedom from torture, Art. 45e of the draft is a cause of seri- inhuman and degrading treatment un- ous contradiction and concern. It stip- der art. 3 of the European Convention ulates that protection seeking minors on Human Rights. and juveniles can be detained at closed centres, although there is a condition Together with these positive devel- that this is a measure of last resort, opments, however, on 19 November which is imposed when found that 2013 the government submitted to lighter measures cannot be effectively the National Assembly a draft amend- applied. Depriving children of freedom ing and supplementing the Asylum and of movement and detaining them at Refugees Act159, conceived, drafted and closed centres is a violation of the basic submitted by the Ministry of Interior child protection standards set in art. 10, (MoI). Together with the provisions elab- para 3 of the Child Protection Act and orated by the State Refugee Agency art. 37b of the Convention on the Rights with regard to the transposition of the of the Child. It may have an extremely Qualification Directive,160 MoI proposed detrimental effect in children’s normal amendments and supplements, which physical, mental, moral and social dein essence introduced a common deten- velopment, especially bearing in mind tion regime for all categories of protec-

156 State Refugee Agency, statistical information as of 10 January 2014. 157 JRS Europe, Becoming Vulnerable in Detention (Detention of Vulnerable Asylum Seekers - DEVAS Project), 2010, National Report for Bulgaria; Open Society Institute, Sofia, Evaluation of the Implementation of the Legal Assistance Act in 2007-2011, Sofia, 24 June 2011. 158 Art. 44, para 4 of the Foreigners in the Republic of Bulgaria Act. 159 http://www.parliament.bg/bg/bills/ID/14681/ 160 Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted. 161 Section І, Chapter V of the Foreigners in the Republic of Bulgaria Act. 58 that while detained the children will be the Court held a violation of art. 2 of Pro- deprived of the access to education, tocol No. 4 and art. 13 in conjunction which is guaranteed to them under art. with art. 2 of Protocol No. 4 because 26, para 1 of the Asylum and Refugees the applicant was banned from travel Act. The proposed amendments also al- after being handed down an effective low protection seeking unaccompanied sentence. The applicant, a Bulgarian children to be detained and placed in and Greek citizen domiciled in Germa- closed centres (art. 45e, para 3). This ny, was banned from travelling because is completely unacceptable as it creates he had been sentenced and not yet re- a less favourable legal standard than habilitated. ECtHR held that in imposing the one established in art. 44, para 9 the travel ban the Bulgarian authorities of the Foreigners in the Republic of Bul- had not considered Mr Kostov’s indi- garia Act with regard to the irregular vidual situation and the proportionality The survey results immigrants who are unaccompanied of the measure. At the same time the children, whose detention is expressly Bulgarian courts had decided that they for Bulgaria indicate and unconditionally prohibited by law. had no powers to review the manner, in that 28% of the There is no legal or factual justifica- which the police authorities had exer- women in Bulgaria tion and excuse of such less favourable cised their powers in imposing a travel treatment of unaccompanied children had been victims of ban. According to ECtHR, this approach seeking international protection, who is too rigid and automated and, there- physical and/or are by definition subject to more favour- fore, inconsistent with the requirements sexual violence by able measures and treatment standards of art. 2 of Protocol No. 4. Due to the than irregular immigrants. their partners or lack of effective domestic means of other persons since The courts’ case law in 2013 estab- protection, ECtHR also held a violation lished a positive standard with regard of art. 13 in conjunction with art. 2 of they were 15 years to the treatment of detained individuals Protocol No. 4. The Court awarded EUR old. seeking protection. In a series of law- 2,000 in non-pecuniary damages and suits the court found the refugee admin- EUR 1,146.65 in respect of expenses. istration guilty of inaction with regard to In the case Nasko Georgiev v. Bulgaria its obligation to timely release the per- of 3 December 2013 (application No. sons who had filed protection applica- 25451/07) an ECtHR committee of tions from SCAF, thus denying them the three judges held a violation of art. 2 of right to liberty and access to protection Protocol No. 4 and art. 13 in conjunction awarding procedures. with art. 2 of Protocol No. 4 because During the year ECtHR ruled against Bul- the applicant had been banned from garia in two cases, in which it held a vi- travelling upon being handed down an olation of the freedom of movement. In effective sentence. The Court awarded Milen Kostov v. Bulgaria of 3 Septem- EUR 1,000 in non-pecuniary damages ber 2013 (application No. 40026/07) and EUR 1,000 in respect of expenses.

59 Women’s rights

The measures implemented by the government in 2013 with regard to the actual protection of women’s rights could not meet the expectations of the human rights The courts’ case law community on the progress in this field as determined by the Concluding observa- in 2013 established tions of the UN Committee on the Elimination of Discrimination against Women with a positive standard regard to Bulgaria.162 On 5 March 2014 the EU Fundamental Rights Agency (FRA) published the results of its survey of violence against women across the 28 EU mem- with regard to the ber states. The survey is based on interviews of 42,000 women aged between 18 treatment of and 74.163 The survey results for Bulgaria indicate that 28% of the women in Bulgaria detained individuals had been victims of physical and/or sexual violence by their partners or other per- seeking protection. sons since they were 15 years old. Analysing the data on Bulgaria by comparing the percentage of women affected by violence, which is similar to the European average, and the relatively low percentage of the interviewees who report knowledge of cases of violence against other women among their family and friends, the Fundamental Rights Agency indicates two possible conclusions. Either the violence in Bulgaria is very low or domestic violence against women in the country is regarded as a personal issue, which is not shared with family and friends, and therefore is not reported to the police and other institutions. Another conclusion of the survey is that more than over half of all interviewed women (56%) are not aware of the existence of the specialised institutions and services for the protection of women victims of violence, specifically indicated in the survey with regard to Bulgaria. By Decision No. 438 of 25 July 2013, the government initiated measures to comply with the Concluding observations of the UN Committee on the Elimination of Discrimination against Women (CEDAW) of July 2012164 one year after their publication. The decision endorsed an implementation plan165 which is to be completed by April 2016.

Protection against domestic violence In the field of the protection against domestic violence, the plan contains a series of important guidelines on action in the areas targeted by Committee’s observations, including: • Signature and ratification of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Conven- tion), but not before July 2015 when a public discussion on its adoption is scheduled. This unjustifiably long deadline will rank Bulgaria among the last Council of Europe member states that will join the Convention, given the fact that even now Bulgaria is among the few countries that have not signed it;166 • Provision of compulsory training of judges, lawyers and law enforcement bodies on protection against domestic violence and conduction of joint trainings with the National Institute of Justice, the Supreme Lawyers’ Council, the National Council for Self-Regulation and other institutions, on stereotypes and discrimination practices;

162 Concluding observations of the Committee on the Elimination of Discrimination against Wom- en. Bulgaria, 27.07.2012, available at: http://www2.ohchr.org/english/bodies/cedaw/docs/co/ CEDAW-C-BGR-CO-4-7.pdf. 163 FRA – European Union Agency for Fundamental Rights, Violence against women: an EU-wide survey. Main results, available at: http://fra.europa.eu/sites/default/files/fra-2014-vaw-survey- main-results_en.pdf. 164 Concluding observations of the Committee on the Elimination of Discrimination against Wom- en. Bulgaria, 27.07.2012, available at: http://www2.ohchr.org/english/bodies/cedaw/docs/co/ CEDAW-C-BGR-CO-4-7.pdf. 165 Action Plan on the Compliance with the Concluding Observations Addressed to Bulgaria by the UN Committee on the Elimination of Discrimination against Women (CEDAW), available at: http:// www.mlsp.government.bg/equal/publ.asp?id=69 166 Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, signatures and ratifications: http://conventions.coe.int/Treaty/Commun/ ChercheSig.asp?NT=210&CM=1&DF=&CL=ENG 60 • Creation of a national mechanism victim of such a crime committed by a for compliance with Committee very close person. The code needs to opinions and a national mechanism be changed in a way that would stipu- to compensate victims of Conven- late that all types of premeditated bodi- tion violations; ly harm shall be prosecuted under the common and not the private law. A rec- • Provision of a 24/7 national hotline for victims of domestic violence; ommendation to Bulgaria in this respect has been issued not only by the Com- • Amending the Protection against mittee on the Elimination of Discrimina- Domestic Violence Act (PADVA) and tion against Women in 2012,170 but also eliminating by April 2014 the one- by the UN Committee against Torture in At the same time, month deadline for the filing of pro- 2008.171 At this time, no special provi- however, tection applications (another unjus- sions criminalising domestic violence institutionalised tifiably long deadline given the low and marital rape in line with the recom- complexity of the task) and guaran- mendations of the Committee172 have practices of abuse, teeing the strict application by the been envisioned in either the existing or coercion and judiciary of art. 13, para 3 of PADVA, the new draft Penal Code. Furthermore, violence at in order to shift the burden of proof in the draft new Penal Code the state in favour of the victim. disregards the special vulnerability of Bulgarian maternity The action plan also envisages the es- the minors, the elderly and the sick peo- wards continue. tablishment of an interdepartmental ple whose life or health is endangered, working group to be assigned the for- and abdicates from its responsibility to mulation by April 2014 of the legisla- persecute under the common law these tive amendments necessary to bring crimes when the victims of abuse or the the draft Penal Code and the current people who had not been granted assis- Penal Proceedings Code in line with the tance have been “in especially close re- recommendations of the Committee lations” with the person who could have on the Criminalization of Domestic Vio- provided, or was obligated to provide, 173 lence and Marital Rape, to remove the such assistance. The only thing that, persecution of domestic violence from as a consequence of the implementa- the domain of private law, etc. In the tion of the plan, was eliminated from the current Penal Code,167 and in the new new draft Penal Code, but still remains draft Penal Code tabled in the Nation- in art. 158 of the current Penal Code, al Assembly on 31 January 2014,168 is the possibility that the perpetrator of the premeditated light, medium and (in certain sexual crimes not be punished some cases) severe bodily harm inflict- or that the penalty imposed not be exe- ed on a “parent, child, marital partner, cuted when the perpetrator and the vic- brother or sister” is only persecuted in tim marry after the crime is committed. case of a direct complaint filed by the These circumstances include also sex- victim in court within six months of ual assault of minors by use of force or the date on which the violence has oc- threat, as well as by use of helpless con- curred169, and not by the prosecutor’s dition of the victim; all types of involun- office under the common procedure. tary penetration, other than vaginal and This results in actual impunity for the including anal and oral, are regarded perpetrators of domestic and other vi- as sexual assault. Other recommenda- olence against women and contradicts tions with regard to the support to the directly the special vulnerability of the victims of domestic violence in Bulgaria

167 Art. 161, para 1 of the Penal Code.168 Draft Penal Code, available at: http://parliament.bg/ bg/bills/ID/14759/. 168 Draft Penal Code, available at: http://parliament.bg/bg/bills/ID/14759/. 169 Art. 80 and 81 of the Penal Proceedings Code. 170 See Concluding observations of the Committee on the Elimination of Discrimination against Women. Bulgaria, 27.07.2012, § 23-26, available at: http://www2.ohchr.org/english/bodies/ cedaw/docs/co/CEDAW-C-BGR-CO-4-7.pdf. 171 See Committee against Torture, Conclusions and Recommendations on Bulgaria, 14.12.2011, CAT/C/BGR/CO/4-5, § 25; available at: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/ Download.aspx?symbolno=CAT%2fC%2fBGR%2fCO%2f4-5&Lang=en 172 See Concluding observations of the Committee on the Elimination of Discrimination against Women. Bulgaria, 27.07.2012, § 23-26, available at: http://www2.ohchr.org/english/bodies/ cedaw/docs/co/CEDAW-C-BGR-CO-4-7.pdf. 173 Art. 139 of the new draft Penal Code, available at: http://parliament.bg/bg/bills/ID/14759/. 61 are contained in Committee’s decisions sociation at the end of 2013178 used against Bulgarian in the cases V.K. v. stories of victim women to show that Bulgaria174 and Isatou Jallow v. Bulgar- childbearing women are often subject- ia175; however, these recommendations ed to rough, insulting, degrading or vi- are not addressed in the action plan on olent treatment by medical personnel the compliance with Committee recom- at Bulgarian hospitals, and that women mendations. Such are, for example, the are being pressed to accept undesired establishment of more guarantees that medical procedures and interventions, domestic violence cases are considered in contradiction to the Health Act.179 when adopting measures with regard At the same time, women who have to children and that the access to jus- chosen to give birth at home or those tice for women victims of domestic vio- who have accidentally given birth at lence, and more specifically immigrant home, are placed in a threatening and women, is effective. The code needs to hostile environment if they need to visit be changed in a way a medical institution after birth, for ex- that would stipulate Rights of childbearing women ample to register the new born in the civic registries. In some cases, the po- In its 2012 Concluding observations that all types of lice appears at the place of birth, the on Bulgaria, the Committee on the premeditated bodily mother is threatened by the social ser- Elimination of Discrimination against vices and is subjected to unwanted me- harm shall be Women expressed also concern with dia attacks. The father stumbles upon prosecuted under the fact that the women are placed in practical obstacles in exercising his an unfriendly environment with regard the common and not right to 15 days of parental leave, which to healthcare, that healthcare suppli- by law is granted of the date the child is the private law. ers are insufficiently aware of women’s discharged from hospital. specific health needs, and that there is no effective mechanism of filing complaints against acts of discrimination Gender equality and abuse. The Committee insisted The Action Plan on the Compliance with that the state initiate measures to deal the Concluding observations Addressed with these issues.176 In response, the to Bulgaria by the UN Committee on the action plan on ensuring compliance Elimination of Discrimination against with the recommendations envisions to Women includes also the adoption of a provide conditions for better awareness gender equality act that would provide of healthcare institutions of women’s for even more effective implementation specific healthcare needs, to adopt a of the gender equality policy whose patient rights and obligations code, and draft is expected by April 2014 (there to create an effective complaints mech- are no indications that this deadline will anism that would support the women be observed). An even longer deadline, in lawsuits for compensation for health- until December 2014, is envisioned by care-related discrimination or abuse. the 2014 National Action Plan on En- At the same time, however, institution- couraging Equality between Women alised practices of abuse, coercion and and Men. At the same time, however, violence at Bulgarian maternity wards Bulgarian legislation contains many ex- continue, and the right of the woman amples of gender discrimination estab- to give birth in circumstances chosen lished by law. Such is Ordinance No. 7 by her, and in a single room, to be ac- on the harmful and heavy work banned companied by someone close to her,177 to be performed by women (promulg. is not guaranteed by law and in prac- SG, No. 58 of 6 July 1993) which tice. A campaign of the Rodilnitsa As- prohibits women to work as divers, to

174 Decision on the case V.K. v. Bulgaria, UN Doc CEDAW/C/49/D/20/2008 of 17.08.2011. 175 Decision on the case Isatou Jallow v. Bulgaria, CEDAW/C/52/D/32/2011 of 28.08.2012. 176 Concluding observations of the Committee on the Elimination of Discrimination against Women. Bulgaria, 27.07.2012, paragraphs 37-38, available at: http://www2.ohchr.org/english/ bodies/cedaw/docs/co/CEDAW-C-BGR-CO-4-7.pdf. 177 Ordinance No. 32 of 30.12.2008 on the adoption of the Obstetrics and Gynaecology medical standard, chapter ХХIV, item 3. 178 “Is violence acceptable? Or rather, how much longer will violence be acceptable?”. For more information, see the Rodilnitsa Association’s Facebook page and http://www.purvite7.bg/articles/view/4739/dopustimo_li_e_nasilieto_i_potochno_dokoga_shte_e_dopustimo_nasilieto. html?rc=56 179 Health Act, art. 87 – 91 and Additional Provisions, § 1, item 15. 179 Health Act, art. 87 – 91 and Additional Provisions, § 1, item 15. 62 operate chainsaws, to drive backhoes, The Commission justified its decision harvesters, etc. under the pretext that with irrational motives, namely that the these activities endanger women’s re- name of the father as a second (pater- productive health. Another example of nal) name has been accepted in the leg- discriminating attitude may be found in islation as part of the naming tradition, the provisions of the Civic Registration which in combination with the specifics Act (CRA) regarding children’s names. of the majority of the Bulgarian male These provisions hinder the woman be- and female names would result in more ing an equal partner in the family and frequent subsequent changes of names having the same position in society as due to lack of unison, should a “mater- the man. For example, art. 14 of CRA nal name” be introduced. CPD justified The prevention of stipulates that the child’s surname may the legislative unequal treatment also abandonment and only be formed by the surname/pater- by the “biological differences between nal name of the father, a practice found the creation of the two sexes [due to which] the bond to be discriminatory by the European accompanying between child and father is built in a Court of Human Rights in Strasbourg.180 different way than the formation of the services establishing At the same time, in 2013 the Commis- emotional relation between mother and a supporting sion for Protection against Discrimina- tion did not establish discrimination in child, which has a physiological foun- environment for the the CRA provisions stipulating that Bul- dation even before birth”. Consequent- children and their ly, “using the name of the father when garian citizens have a “paternal” name families remained (and not a “middle name” or “paternal naming a person helps manifest the and/or maternal name”, as indicated by relation between father and child and the weakest link of the applicant).181 The applicant felt that thus helps establish and develop the child care reform. this degraded “the mothers, the single emotional relation between them”. In mothers and the children of unknown this way the Commission, together with fathers and gave the mothers a second- the other state bodies, failed to meet ary role in defining the middle name and Bulgarian women’s legitimate expecta- the surname of their own children”.182 tions of equality in society.

180 See for example Cusan and Fazzo v. Italy (application no. 77/07). 181 Decision no. 324 of 20.12.2013 on case file no. 244/2012. 182 For example, see art. 15 of CRA, which stipulates that the name of a child for whom only the mother is known shall be formed by the mother’s first name, but it is still called “paternal name”. 63 Rights of the child

Deinstitutionalisation The closures of children’s homes increased in 2013. The prevention of abandonment and the creation of accompanying services establishing a supporting environment for the children and their families remained the weakest link of childcare reform. Another example At the start of the deinstitutionalisation in 2010, there were 137 children’s homes with 5,695 children residing in them. At the end of 2013, there were 106 children’s of discriminating homes183 with 4,317 institutionalised children.184 In 2013, 14 homes for children attitude may be deprived of parental care (HCDPC) and two homes for medical and social care for found in the children (HMSCC, for children aged 0 to 3 years) were closed down. In comparison, five HCDPC were closed in 2012. Upon the initiation of the five projects of the Ac- provisions of the tion Plan on the Implementation of the Vision for the Deinstitutionalisation of the Civic Registration Children’s Homes, a total of 147 new social services for children and families185 were Act regarding created between June 2010 and October 2013. children’s names. The deinstitutionalisation of children’s homes in Bulgaria began in earnest with the preparation and the removal of children with disabilities from the institutions. The rea- soning was that they were most vulnerable and needed urgent measures to change their life. The first project under the Action Plan, Childhood for Everyone, started in June 2010 and was targeted at almost 1,800 children aged over 3 years and young people with disabilities placed in 24 homes for children with mental disabilities (HCMD) and 32 HMSCC. From the beginning of 2012 until mid-2013, 59 children have left the homes for children with disabilities, 1,772 have left the homes for children aged 0 to 3 years, and 977 were removed from homes for children deprived of parental care.186 Despite the progress of the deinstitutionalization, problems still remain: The whole process was delayed by roughly a year due to the different speed of building the new services. The creation of accompanying services, day centres and social rehabilitation and integration centres, is significantly behind schedule. It is expected that by the end of 2014 the existing homes for children with disabilities will be closed and new 149 resident services will be established – family-type accommodation centres (FTAC, small group homes for up to 12 children) – as well as 37 day centres for children with disabilities and 34 new social rehabilitation and integration centres. The situation at the end of 2013: although 950 children were placed in family-type accommodation centres, four times more children were being raised in institutions. The construction of new day centres and social rehabilitation and integration centres, services that create a supporting environment, is significantly behind schedule. The children at risk and their families are far from receiving adequate state support for development. The state is still financing the two parallel systems, the institutions and the community alternatives. The Ministry of Labour and Social Policy declared in 2013 that it will prepare a new financial mechanism, but there are still neither standards nor a real application of the “money follows the child” principle.

183 Letter to BHC, ref. no. 9102/2296 of 21 December 2013 from the Social Assistance Agency to the Ministry of Labour and Social Policy. 184 It is not clear whether the official statistics accounts for the young people who have reached the age of 18 but are still living in childcare homes. According to the State Child Protection Agency, in HCMD alone there are 530 young people out of a total population of 1,182: 1,140 in 25 homes for children with mental disabilities (618 children and 522 young people) and 42 in one home for children with physical disabilities (38 children and 8 young people). 185 Letter to BHC, ref. no. 9102/2296 of 21 December 2013 from the Social Assistance Agency to the Ministry of Labour and Social Policy. 186 Information provided on a BHC request for access to public information no. 05-00-9/18.12.2013. 64 “Hollow” alternatives and risk of cal institution. Such high-risky transfers re-institutionalisation were found at the HMSCC in Kardzhali and Burgas. The creation of “hollow” new services is one of the grave problems in the dein- It is recommended that the develop- stitutionalisation process. Since 2010 ment of the network of new local ser- BHC has been observing a worrisome vices and the training of staff be accel- practice: new resident services and erated, while at the same time some even service sets (family accommoda- HMSCC are transformed in specialised tion centres, protected homes) are es- medical institutions for children with tablished in the buildings and the court- severe disabilities. At least five HMSCC, yards of children’s institutions, mostly in including the ones in Stara Zagora, Bur- As in 2012, small communities. Such practices are gas, Varna and Pleven, have the nec- often a form of hidden institutionalisa- essary resources and can be reformed abandonment tion and a prerequisite to provide care into specialised medical institutions for prevention and without quality. Sometimes this results children with disabilities in need of af- support to parents of in re-institutionalisation, especially in tercare and long treatment, as well as case of severe medical conditions. BHC of early intervention and palliative care. special needs found a very indicative example in Bur- According to the State Child Protection children continued to gas. The director of the HMSCC in Bur- Agency (SCPA), the prevailing share of be the weakest link gas informed that one of the children the children currently in HCDCP and of the reform of the who on 11 September 2013 had been HMSCC are with disabilities. The data removed from the home and placed in show that the relative share of the chil- homes for children a small group home in Karnobat, was dren with disabilities is distributed as aged 0 to 3 years. returned to the HMSCC in Burgas on 27 follows: in HCMD – 100%, in HMSCC September 2013 in a severe medical – 56%, and in HCDCP – 26%. condition. According to the director, Dr. Pepa Ralcheva: “In the papers assessing Escalation of child abandonment his condition for the purposes of the by single underage mothers and deinstitutionalisation project, this child by families of poor parents with had been ranked as 1, meaning that many children he is dependent on medical care and is currently not suitable for removal. Nev- BHC monitoring of 20 HMSCC in 2013 ertheless, in the assessment table under revealed that most of the children who the Childhood for Everyone project the left HMSCC in 2013 were placed in a code was changed and the child was re- family environment, in some cases in moved. But for only … 6 days. Following their own biological families. During the re-institutionalisation, the child was the last three years, however, a sustain- urgently placed in the children’s ward of able reciprocal negative trend was also the Burgas hospital in an extremely bad established: an influx of children from condition and with a risk to his life“. poor families at the entrance of the HM- SCC. SCPA statistics indicate that the In the process of monitoring several prevailing share of newly-arriving chil- HMSCC in 2013 BHC identified evalu- dren come from large families of unem- ations of “risky” transfers to small group ployed parents, or are children of single homes (meaning groups of 5 to 7 bed- underage mothers of Roma origin. The ridden children, often suffering from lack of activities to prevent abandon- accompanying hypostatic pneumonia, ment and early intervention, as well as with multiple severe mental and physi- the great poverty supplemented by a cal disabilities, such as contractures of severe health condition, are the decisive joints, muscle hypertrophy, severe hy- factors behind the institutionalisation of drocephalus and many congenital mal- such children. formations). The children were referred to small group homes without an align- The conclusion is that the point of en- ment between the new social service try to the homes for children aged 0 to and 24-hour specialised medical assis- 3 years remains wide open. According tance and oversight by a nearby medi- to SCPA, the number of children aged

65 under 1 was 769 in 2012 (578 healthy The HMSCC metamorphosis and 191 with disabilities) and 539 by The Ministry of Health’s Direction: Fam- September 2013 (418 healthy and 121 ily project (October 2011 – August with disabilities). According to directors 2014) is the only state project aimed of the social assistance directorates mainly at providing support to children (local bodies of the Social Assistance at risk and their families. It is based on Agency), the abandonment in HMSCC the presumption that the deinstitution- of children by underage Roma mothers alisation is a means and not an end, and is escalating. In the Roma neighbour- that the family, being the best environ- The creation hood in the town of Nikolaevo, near ment for a child, should receive devel- Stara Zagora, in November and Decem- of “hollow” new opment support. The achievements so ber 2013 alone, the social workers ini- services is one far indicate that the number of children tiated 12 new cases of monitoring of at the eight pilot HMSCC (in Gabrovo, of the grave children at risk of abandonment, all of Montana, Pazardzhik, Pernik, Plovdiv, them children of single underage moth- problems in the Ruse, Sofia and Targovishte) has been ers. According to the Social Assistance deinstitutionalisation reduced fourfold, from 342 at the be- Directorate in Gurkovo, 8 children from ginning of the project to 90 children process. the Roma neighbourhood in Nikolaevo with disabilities in these homes by 31 have already been placed in an institu- December 2013, of whom 36 aged tion in 2013 alone. Information provid- up to 3 years. As a special short-term ed to BHC by HMSCC directors in the protection measure, these children are region (HMSCC in Stara Zagora and Bu- to be placed in a specialised resident zovgrad) indicates that the Roma neigh- service for children with disabilities at bourhood in Nikolaevo is a “sustainable small group homes.190 generator” of children abandoned at HMSCC. Three children from Nikolaevo However, no HMSCC were closed by the have entered the HMSCC in Stara Za- end of 2013. The HMSCC in Kyustendil, gora in the past three years. A total of which was closed on paper, is to be 16 children aged one month to a year closed in 2014. The Ministry of Health and a half were placed in the HMSCC is also planning to close the eight pilot in Buzovgrad between 2010 and 2013. HMSCC. New services are also planned: The medical documents show that all seven family advice centres, three foster children have severe health problems care centres, five early intervention cen- (congenital anomalies), which in most tres, three mental health centres, eight cases worsen due to neglect and mis- day care centres, two “mother and baby” erable living conditions in their families, units, eight mother and child health which are unable to meet their chil- centres and nine family accommoda- dren’s specific needs without a support- tion centres. The conclusion is that if ing environment.187 More than 70% of there is any progress in HCDPC reform, the children188 who have entered HCD- it was achieved in the eight pilot institu- CP in 2013 also come from biological tions. 20 of the existing 29 HCDPC in families. HCMR entry data for 2013 indi- the country have not shown progress in cate that some 80% of the children have closing the entry and transforming the come from another institution (35 chil- institution. The Ministry of Health sta- dren). The newly admitted children com- tistics shows new arrivals even at the ing from biological families were 9.189 eight pilot institutions: a total of 288

187 Profiles of children admitted at the HMSCC in Buzovgrad in 2013: “A girl aged 2 years and 4 months, admitted on 23 June 2013, comes from family environment. The father is 84 years old and keeps the child tied during the day. The mother is often absent from home. The child was admitted at the HMSCC in Buzovgrad is a deplorable condition: without underwear, with only a faeces-covered dress, unbathed“; “A girl aged 1 year and 5 months, admitted on 13 November 2013, comes from family environment. The mother is underage, of Roma origin, left for Greece abandoning the child. Signal received that the child was in very bad health“. 188 According to SCPA, 515 children from biological families entered the HCDPC in 2012. The next largest group, with a share of some 20% or 130 children, have come from specialised institutions. The HCDPC admission data for 2013 indicate that approximately 80% or 35 of the newly arrived children have come from another specialised institution. The newly arrived children coming from biological families were 9. 189 Information on BHC request for public information, ref. no. 05-00-9/18.12.2013 of SCPA. 190 Information on BHC request for public information, ref. no. 05-00-16/17.01.2014 of the Ministry of Health. 191 Information on BHC request for access to public information, ref. no 05-00-16/17.01.2014 of the Ministry of Health. 66 children from 1 December 2012 until postatic pneumonia which is the No. 1 30 November 2013.191 The increasing cause of child mortality in the homes. number of admissions straight from the (Tsvetelina Milanova, physiotherapist) maternity wards is a cause of concern. There are children with stereotypical According to Ministry of Health data, al- motions. The staff has no understand- most 40% of the children admitted to ing of the significance of this behaviour HCDPC in 2013, or 106 children, have and of correct treatment and prevention. come directly from the maternity wards. Despite the existence of individual care As in 2012, abandonment prevention plans, they are developed stereotypical- and support to parents of special needs ly. Most HMSCC have functioning day children continued to be the weakest centres but the children from the institu- link of the reform of the homes for chil- tion are not always integrated in them, dren aged 0 to 3 years. Although the like for example, HMSCC Ivan Rilski in amendments in the Healthcare Act (art. Sofia. (Margarita Stankova, MD, Assoc. 125a of 2009) and the Medical Insti- Prof., psychiatrist) tutions Act (art. 69, para 2, item 10 of In terms of logopaedic diagnostics and 2010) oblige maternity wards to noti- prevention, the diagnostics is currently fy municipal social services about risk covering children above the age of 3, of abandonment and to interact with which in reality compromises its pre- them, no common early intervention ventive function in the early age of 0 to standards are applied. HCDPC directors 3 years. (Svetlana Kartunova, logopae- say that medical specialists at mater- dician) nity wards are still convincing mothers of new-born babies with disabilities to abandon them. Furthermore, parents Family environment: foster care, claim that they “diagnose” without the reintegration and adoption necessary genetic tests. There are also deficiencies with regard Foster care to the quality of childcare inside the In 2013, there were 1,847 foster fam- HMSCC. Some of the main conclusions ilies taking care of 1,796 children. The of the independent experts who took data shows that the number of foster part in the BHC monitoring of HMSCC families has increased fivefold in com- in 2013 include: parison to the 391 in 2011.192 The in- The level of healthcare at HMSCC for troduction of professional foster care as children aged 0 to 3 years in inconsis- an employment opportunity and the I tent and varies significantly depending Have a Family, Too project, implement- on the host community. Many children ed by the Social Assistance Agency in with disabilities (cerebral palsy, Down 83 municipalities since 2011, were the syndrome) who remain in HMSCC decisive factors behind the progress. above the age of 3 show significant de- The analysis of the information collect- velopmental delays due to poor physi- ed in by BHC during its 2013 monitor- cal and social rehabilitation carried out ing of 17 foster families and adoptive by unqualified staff. (Boyana Petkova, parents, and the cases of reintegration MD, paediatrician) in different communities discussed with Child Protection Departments, clearly Most of the children with disabilities indicate that most foster families have were placed in a home since they were provided the necessary conditions to infants. The conditions of their muscu- care for the children and raise them.193 loskeletal system, the existing joint con- Foster care is asserting itself as suc- tractures and muscle hypertrophy indi- cessful temporary substitute mainly for cate that not enough has been done for smaller children, while children aged 7 these children. Bedridden children are through 18 tend to be reintegrated in not provided breathing rehabilitation, a their biological families or to be raised proven means of prophylactics for hy-

192 Letter to BHC, ref. no. 9102/2296 of 21 December 2013 from the Social Assistance Agency to the Ministry of Labour and Social Policy. 193 Excerpts from foster parent interviews in Kostandovo: “…We give more care to them than to our own”, ”All the love is for them”. 67 by relatives. Despite the 2013 legisla- disabilities.195 According to SCPA, 340 tive changes to the adoption procedure children were adopted internationally in which oblige the foster families to pre- 2012.196 The older children and those pare the child for adoption or reintegra- with more severe health conditions are tion, the coordination between foster practically excluded from the adoption care procedures, as a temporary protec- process. Children with severe health tion measure, and adoption and reinte- conditions are adopted internationally, Many children with gration still poses a problem. in the US, Italy, Norway and Sweden. disabilities (cerebral Out of the 567 children from HCMD palsy, Down (the institutions accommodating the Reintegration at any cost children with the most severe disabili- syndrome) who The 2013 BHC monitoring in 20 HMSCC ties) included in the adoption registers, remain in HMSCC showed that the “expansion” of the HM- only 12 have been adopted, all of them above the age of 3 SCC exit is not a smooth process. There diagnosed with severe disabilities and show significant were cases of deinstitutionalisation adopted abroad. No child from HCMD replicating institutionalisation. HMSCC had been adopted in Bulgaria since developmental and HCDCP directors share information 2010. delays. about cases of re-institutionalisation The impression is that there is no prog- (see the section above) as a result of ress in the support to the adoption pro- reintegrating “at any cost“, sending chil- cess and that the state is not exercising dren with severe health problems back sufficient oversight. Alerted by BHC, the to their biological families, often a sin- Social Assistance Agency of the Minis- gle mother or a large family of poor and try of Labour and Social Policy inspect- unemployed parents. Without financial ed the adoption process at the Stara means, skills and development support Zagora Regional Social Assistance Di- by the state (healthcare, accompanying rectorate.197 Again alerted by BHC in services, employment, training), the re- 2013, the Ministry of Labour and Social turn of the children to their families of- Policy revised the practices with regard ten ends with their return to a home.194 to the compliance with child registration and adoption procedures for full adop- 198 Adoption tion. A Methodical Instruction on Co- ordination in Conducting National and The data shows No progress was marked with regard International Adoption Procedures was that the number of to the adoption procedures in 2013. developed in June 2013 and signed by foster families has 739 children were adopted nationally the Ministry of Labour and Social Policy, in 2012, of whom 48 with disabilities. the Ministry of Justice, the State Child increased fivefold in 600 children were nationally adopted Protection Agency and the Social Assis- comparison to the by 31 October 2013, of whom 27 with tance Agency. 391 in 2011.

194 Profile of a re-institutionalised child as described by the director of the HMSCC in Burgas: “A girl aged 1 year and 1 month old, admitted on 26 October 2010, comes from the maternity ward of the hospital in Kazanlak. As a result of neglect and insufficient care on behalf of the mother, between her birth and her placement in HMSCC, the child was hospitalised at the maternity ward 11 times with severe viral infections and bacterial intestinal infections. Every time the child arrived at the hospital in a deteriorated and severe general condition due to lack of care and bad hygiene. The mother has another six children who are being raised in the same conditions. The child was admitted underweight and in unsatisfactory neural and mental development. Reintegrated in the family of the mother and the father on 8 May 2012“. 195 Letter to BHC, ref. no. 92-920 of 11 February 2013 from the Social Assistance Agency to the Ministry of Labour and Social Policy. 196 Information on BHC request for access to public information, ref. no. 05-00-9/18.12.2013 of SCPA. 197 With regard to adoptions of children with severe medical conditions being delayed for eight years. 198 Letter to BHC, ref. no. 92-920 of 11 February 2013 from the Social Assistance Agency to the Ministry of Labour and Social Policy. 68 LGBTI rights

The lesbian, gay, bisexual, transgender and intersex people (LGBTI) in Bulgaria continue to face great social and legal challenges and discrimination which are not experienced by the heterosexual and cissexual people.199

Equality and non-discrimination In 2013 the LGBTI people in Bulgaria continued to be treated less favourably by the legislation in comparison to the people not belonging to these groups, as well as in comparison to other minority groups. The current Penal Consensual same-sex acts, when not performed in public, are decriminalized in the Code does not current Penal Code (PC) of 1968. However, the law still contains aggravated circum- contain penal stances, which divide the criminal sexual acts into regular (undefined) and performed measures for hate “with a person of the same sex” (art. 155, para 4; art. 157, para 1, 3 and 4). crime or hate speech In December 2013 the Ministry of Justice presented the draft for a new Penal based on sexual Code.200 Articles 166 through 169 of the draft reproduce the vicious and for a new discriminatory separation of criminal sexual abuse with a person “of the same sex”, orientation, gender and criminal statute titles even contain the definition “homosexual act”. However, the identity or gender aggravated circumstances of rape under art. 164 (paras 2, 3 and 4) are absent with expression. regard to the “homosexual act”. Thus, in the case of a group “homosexual act” involving violence inflicted by two or more persons, the maximum sentence under art. 166 is eight years of imprisonment, while in the case of a “regular” (heterosexual) rape the maximum sentence is 15 years. The difference is even greater with regard to rape that has caused great bodily harm. The draft reproduces the doctrine of the current Penal Code, according to which the penalty for the rape of an underage person of the same sex is significantly lower than the penalty for the same crime when the raped person is of the opposite sex. Art. 164 of the draft is a continuation of the archaic understanding that only a woman can be raped. Such an approach is unjustified and deprives of protection the victims of such assaults. Furthermore, the approach does not recognise the possibility of someone being raped on the basis of protected grounds, for example, a man or woman being raped because of their sexual orientation, gender identity or gender expression, or because of their religion, etc. Sexual orientation is a protected characteristic under the Protection against Discrim- ination Act (PADA, art. 4, para 1). Gender identity and gender expression, however, are not included among the grounds under art. 4 of PADA. In November 2013, with regard to the transposition of Directive 2006/54/EU of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), the interdepartmental working group formulated and submitted to Parliament the Act Amending and Supplementing the Protection against Discrimi- nation Act, whereas a new item 17 is created in § 1 of the additional provisions - item 17: “With regard to art. 4, para 1, sex shall include also the cases of sex change”. However, the draft does not provide a definition of sex change, leaving room for interpretation that this text only protects post-operative transsexual people. By the end of 2013 parliament had not reviewed the draft. On 20 September 2013, one day before the annual march for equality of the LGBTI people, the Sofia Pride, the Ataka party tabled a draft amending and supplementing the Penal Code. Its art. 155c stipulates: “Anyone manifesting publicly their or

199 Cissexual or cisgender – a term denoting all people who are not transgender or transsexual. 200 See http://www.strategy.bg/PublicConsultations/View.aspx?lang=bg-BG&Id=1139 (accessed on 27 January 2014). 69 someone else’s homosexual orientation by no means penalized by law enforce- or affiliation, by organizing or taking ment bodies. part in rallies, marches and parades or in the mass media and internet, shall Freedom of peaceful assembly be punished by imprisonment of one to and of association and freedom of five years and a fine of five thousand to expression ten thousand leva”. The draft was not reviewed by parliament until the end In 2013, there were at least three non-governmental organisations whose In 2013 the LGBTI of 2013, but caused ample public homophobic speech among the national- activities were centered on the LGBTI people in Bulgaria ist circles, including in major media. community: the Bilitis Resource Cen- continued to be tre Foundation; the Deystvie Associa- treated less tion; and the LGBT Plovdiv Association. Personal and family life Small events were organised in Sofia, favourably by the Bulgarian legislation still does not rec- Plovdiv and Stara Zagora on 17 May, legislation. ognize any form of same-sex family. on the occasion of the International Day Both the Constitution (art. 46, para 1) against Homophobia and Transphobia and the Family Code of the Republic (IDAHO). The Sofia Pride scheduled for of Bulgaria (art. 5) define marriage as 22 June was cancelled and then post- a voluntary union between a man and poned by three months upon manipu- a woman. The political parties have no lation and pressure by the Municipality position on this, active public debate is of Sofia and representatives of the Min- inexistent. There are no legal provisions istry of Interior against the organisers on cohabitation. There are more than who used the “participants’ security” ar- 50 legal provisions regulating different gument in the context of the peaceful rights, obligations, responsibilities or re- anti-government protests at the time. strictions for married couples, of which In disagreement with the decision to same-sex cohabiting couples are de fac- postpone the pride, BHC left its organ- 201 to deprived. Unlike non-marital couples isational committee. BHC felt that in of different sex, same-sex couples do fact this constitutes a restriction of the not have the opportunity to enter into right to association and peaceful as- any legally recognized union, which sembly by the Municipality and the So- puts them in an unequal position. No fia Directorate of Internal Affairs whose Art. 164 of the draft form of adoption by a second person of obligation is to ensure the safety of the is a continuation of a sex identical to that of the parent of a participants in the parade and who can- child has been legalised. not use insecurity as an argument of the archaic not having it held. The fact that the Mu- understanding that nicipality insisted on the cancellation of only a woman can Hate crime and hate speech the peaceful Sofia Pride, but not of the be raped. The current Penal Code does not con- aggressive counter-marches planned tain penal measures for hate crime or for the same day was scandalous. The hate speech based on sexual orienta- Pride took place on 21 September with 202 tion, gender identity or gender expres- the participation of some 600 people. sion. These characteristics are not con- The art festival and the film festival that sidered aggravating circumstances in accompany the Sofia Pride were held in the penal process. Hate speech based June, as initially planned. on sexual orientation may be punished On the initial date of the Sofia Pride, under the administrative or the civil law 22 June, LGBT activists taking part in proceedings under PADA. Over the year massive protest against Plamen Ore- the people of different sexual orienta- sharski’s government were attacked tion were subject to daily instigation by football fans. Among the latter was of hate and discrimination which were Elena Vatashka, Bulgarian Football

201 See “BHC protests authorities’ pressure to cancel the 2013 Sofia Pride”, available at: http:// www.bghelsinki.org/bg/novini/press/single/otvoreno-pismo-bhk-protestira-sreshu-natiska-na-vlas- tite-za-otmyanata-na-sofiya-prajd-2013/ (accessed on 26.01.2014). 202 See Stoyanov, R. (September 2013). “The price of being free: impressions of the 2013 Sofia Pride”, Obektiv, no. 213, pp. 30-33, also available at: http://www.bghelsinki.org/bg/publikacii/ obektiv/radoslav-stoianov/2013-09/kolko-struva-da-bdesh-svoboden-vpechatleniya-ot-sofiya-prajd-2013/ 70 Union’s coordinator for the interaction ers themselves Christian and Bulgarian with fans, chairperson of the Bulgarian oppose the planned gay parade in any Football Fans Association and former way possible”, indicating that throwing wannabe member of parliament from stones against the participants in the the ultranationalist VMRO party. The po- parade was “a feasible option”. LGBT ac- lice initially appealed to the activists to tivists Radoslav Stoyanov and Dobromir leave the protest, then passively refused Dobrev then alerted the prosecutor’s to intervene.203 office. Pre-trial proceedings were initiated but were terminated in 2013. When Two anti-pride events were held in June Stoyanov protested the prosecutor’s ter- and September in Sofia, accompanied mination order, it was upheld first by the by a march in support of the traditional Sofia Area Court and then finally by the family in Burgas organised by protestant Sofia City Court on 28 November. Ac- churches and defined by its organisers cording to the prosecutor and the judg- as a counteraction to the Sofia Pride.204 es, Stoyanov had not suffered damages The collection of signatures against the under art. 74 of the Penal Proceedings pride was also organised.205 On 14 June Code in his capacity as a non-heterosex- ultra-radical fans of the Botev Football ual citizen and LGBT activist.208 Club verbally attacked and physically damaged property during a movie pro- The trial for the 2008 homophobic mur- jection organised by LGBT Plovdiv.206 der of Mihail Stoyanov began at the same time.209 BHC monitored the start The 9th LGBT Art Fest took place from of the trial. The third indictment formu- 3 to 5 December in Sofia. The festival’s lated by the new overseeing prosecutor theme was Take Off the Mask and the did not reflect the statements made by event was organised by the Bilitis Re- the defendants during their questioning source Centre in partnership with the that they had attacked Mihail Stoyanov Red House, LGBT Plovdiv and the Bul- because they were “cleansing the park garian Helsinki Committee who present- of gays”. The presumed sexual orienta- ed Amnesty International’s Write for tion of the victim was not discussed as Rights initiative. The agenda included a potential murder motive during the exhibitions of LGBT authors, interactive court sessions monitored by BHC. performances, a workshop and movie projections.207 The Supreme Administrative Court (SAC) ruled in December as last instance Access to justice against film director Andrey Slabakov. Appearing in Nova Television’s Na Inat The proceedings against father Evge- show in 2011, Slabakov said that “[...] ni Yanakiev from Sliven’s St. Dimitar the proliferation of AIDS is not only Church was finally terminated in 2013. due to the drug addicts, as we know, in In an interview for the Standart daily in some countries it is allowed one to be a the summer of 2012 the priest publicly drug addict, but the cigarettes are very appealed that “everyone who consid- harmful… Besides, not to mention that

203 See The Sofia Pride (2013), “A group of LGBT protesters was attacked by football fans during the protests yesterday”, available at: http://sofiapride.org/2013/06/23/grupa-lgbt-protestirash- ti-e-bila-napadnata-ot-futbolni-priva-rzhenitsi-po-vreme-na-protestite-vchera/ 204 See BNS (2013), “A march in Sofia and initiatives against sodomy countrywide: gay activists with a provocation”, available at: http://bgns.net/шествие-в-софия-и-инициативи-в-цялата-с/; and Dnevnik daily, 21 September 2013, “The gay parade in Sofia today provokes an anti-gay march”, available at: http://www.dnevnik.bg/bulgaria/2013/09/21/2145362_gei_paradut_v_ sofiia_dnes_provokira_anti-gei_shestvie/ 205 See “Collection of signatures to ban the gay parade submitted to the municipality of Sofia today”, Bulgarian National Union, 5 June 2013, available at: http://bgns.net/подписка-за-забрана- на-гей-парада-бе-вн/ 206 See “Botev football fans against Gay Festival”, Standart daily, 12 June 2013, available at: http://paper.standartnews.com/bg/article.php?d=2013-06-12&article=454146; “Ultras assault movie festival in Plovdiv”, E-Newspaper, 15 June 2013, available at: http://e-vestnik.bg/17874 207 “Celebrities support the 9th edition of the LGBT ART FEST, Take Off the Mask”, available at: http://www.bilitis.org/lgbt-fest 208 Decision No. 3708 of 2013 on case No. 5247/2013 of the Sofia City Court. 209 “Five years later, the trial for student Mihail Stoyanov’s murder begins”, 24 Chassa daily, 18 October 2013, available at: http://www.24chasa.bg/Article.asp?ArticleId=2378325 71 they are massively disseminating AIDS, again held its annual Day of Silence, because not all gays are homosexual, dedicated to abuse in school. The event some are bisexual. This doesn’t work was organised by the Embrace School in society’s interest”.210 This prompted Club with the support of school man- LGBT activists Stoyanov and Dobrev agement and the involvement of an to file a complaint with CPD, but the activist from the Deystvie Association. Commission did not find the statement With regard to the event, Ataka MP discriminatory.211 In its December 2013 Pavel Shopov addressed during the decision, however, SAC ruled finally regular parliamentary control session that it constitutes discrimination on the on 29 November several questions to grounds of sexual orientation.212 the minister of education pertaining to the activities of the Action organisation. According to him, the Ministry of Edu- Institutions, organisations and cation should not allow “such “events” human rights activists that scandalise the public morale and morality” and that the “Action is part of The interaction between the institu- “certain forces” which are “working to tions and the LGBT community and its ruin our country in cultural and spiritu- non-governmental organisations and al terms”.215 In response to the member advocates remained weak and formal- of parliament, minister Anelia Klisarova istic in 2013. This year, too, no politi- thanked him for the question and for cal party or institutional representatives the “alarm” it posed. In her statement supported openly and publicly the Sofia Klisarova implicitly agreed with Shop- Pride, nor attended the parade or the ac- ov’s position, saying that National As- companying cultural events. The event sembly discussions have influence on was supported by 16 embassies213 and all schools with regard to “what events, foreign members of the European Par- what seminars, on what topics they liament.214 should be organised”.216 The American College in Sofia once

210 See “Discrimination trial against Andrei Slabakov postponed”, www.GamaNews.bg, 4 March 2013, available at: http://gamanews.bg/2013/03/04/otlozhiha-deloto-za-diskriminacia-sreshtu-andrei-slabakov/ 211 “SAC: Andrei Slabakov has committed discrimination”, www.capital.bg, 16 December 2013, available at: http://www.capital.bg/blogove/pravo/2013/12/16/2204478_vas_andrei_slaba- kov_e_izvurshil_diskriminaciia/ 212 “Supreme Administrative Court: Andrei Slabakov has committed discrimination on the grounds of sexual orientation”, www.GamaNews.bg, 17 December 2013, available at: http://gamanews. bg/2013/12/17/va-rhovniyat-administrativen-sa-d-andrej-slabakov-e-izva-rshil-diskriminatsi- ya-na-osnovata-na-seksualna-orientatsiya/ 213 “The Sofia Pride Gets Support from 16 Embassies”, available at: http://sofiapride. org/2013/09/20/sofiya-prajd-poluchi-podkrepata-na-16-posolstva/ 214 See “Congratulations on the Pride! From the European Parliament”, available at http://sofiapride.org/2013/09/19/videoposlanie-za-podkrepa-za-sofiya-prajd-2013-ot-evropejskiya-parla- ment/ 215 See “Statement with Regard to the Attack against Action in Parliament”, available at: http:// www.deystvie.org/izyavlenie-po-povod-atakata-sreshtu-deystvie-v-parlamenta 216 Minutes from the 66th plenary session of the 42nd National Assembly of 29.11.2013, available at: http://www.parliament.bg/bg/plenaryst/ns/50/ID/3953/ 72