Memorandum of the Bulgarian Helsinski Committee

Memorandum of the Bulgarian Helsinki Committee Following the June 25 parliamentary elections, change once again topped the agenda in our society.

At a time when the Bulgarian public sector and Bulgaria’s international partners expect to see the concrete dimensions of this change, the Bulgarian Helsinki Committee addresses the Bulgarian government and other institutions, in order to raise once again the most burning human rights problems that remained unsolved under previous governments. These are the problems of millions of Bulgarian citizens, whose voices are unheard, but whose problems remain. Turning our backs on them is degrading not only to them, but to all of us. Solving them would be the true source of our strength and an attestation to our humanity.

We want: I. ACCESSION TO INTERNATIONAL HUMAN RIGHTS AGREEMENTS The process of Bulgarian ratification of international instruments for the protection of human rights must continue. The list of international human rights agreements, the ratification of which would have a long-term positive effect on domestic and international relations in Bulgaria, is still long. The signing and ratification without reservations of several of them should be discussed as a matter of priority. These include: -

Protocol 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms

-

The Optional Protocol to the UN Convention on the Elimination of All Forms of Discrimination Against Women

-

The Optional Protocol to the UN Convention Against Torture

-

The UN Convention for the Protection of Migrant Workers and Members of Their Families

-

The European Convention on Citizenship

-

The UN Convention on the Reduction of Statelessness

-

The European Charter on Regional and Minority Languages.

The Bulgarian government should submit its reports to the UN and the Council of Europe bodies in due time

and should fulfill the recommendations made by them.

II. PREVENTION OF TORTURE, INHUMAN AND DEGRADING TREATMENT AND PUNISHMENT In order to effectively curtail the possibility of torture, unlawful use of force and all forms of violence on the part of law enforcement officials, and in order to bring domestic legislation in line with international legal standards of human rights, the following steps should be taken: • Legislative reform. This should provide the possibility for effective legal assistance, including a courtappointed defense, if the person cannot afford to hire a lawyer, from the moment of arrest or when official charges are brought, via the establishment of a legislative framework for legal aid for indigent suspects and defendants. There should also be a legally guaranteed possibility that family members of detainees are promptly notified about the whereabouts and conditions of the detention. The law must also guarantee access to independent medical expertise immediately following arrest, including by a doctor of the detainee’s choice.

• Swift and effective investigations by the prosecution and the other officials conducting pre-trial investigations of all reports of unlawful use of physical force or firearms by law enforcement officials.

• To set up independent civil commissions to oversee law enforcement agencies and receive and investigate citizens’ complaints. They should guarantee speed and effectiveness of investigations into cases of unlawful use of force or firearms by law enforcement officials. Such commissions will also guarantee that the results of these investigations are made public. Parallel to these changes, the system of internal institutional control at the Ministry of the Interior must be improved.

• Article 80 of the currently effective Ministry of the Interior Act should be amended. The amendment should rule out the possibility for use of firearms by law enforcement officials in all cases of pursuit of suspects, even for petty crimes, as well as for the prevention of the escape of a suspect, even for a petty crime.

• The material conditions in all places of detention need to be improved as a matter of priority. All

OBEKTIV 1

facilities in which the conditions of detention are inhuman and degrading should be closed down.

• Programs of activities should be introduced for rehabilitation of prisoners. Furthermore, guarantees should be introduced against the arbitrary imposition of disciplinary punishments, including solitary confinement in places of detention.

• Legislative reform needs to be carried out to ensure the detainees’ access to work and in a manner that sets out a strict procedure that leaves no room for arbitrariness.

• Legislative provisions for adequate access to justice and rehabilitation for women who are victims of domestic violence. These should include: -

Changes in the Penal Code to make domestic violence a crime of general character,

-

The establishment and support of refuges and rehabilitation centres for victims of domestic violence.

III. INDEPENDENCE OF THE JUDICIARY, FAIR TRIAL AND THE PROTECTION OF PERSONAL LIBERTY AND SECURITY Despite the amendments made in a number of domestic laws, the problems associated with the independence of the judiciary, fair trial and the protection of personal liberty and security continue to exist. There is a grave need for legislative reform, in order to change the structure of the justice system and the roles of the individual players in it, by introducing a more effective leadership mechanism, in order to guarantee the independence of the courts from private and institutional interests, effective investigation and upholding of charges and an overall increase in the speed of the proceedings. What is needed are amendments to existing procedural laws, in order to prevent unnecessary delays, and an entire package of measures improving the organization of the court system and the motivation level of those working in it.

Outdated regulations, such as the Decree on Combating Minor Hooliganism and the Juvenile Delinquency Act, must be reformed. Detention for up to 15 days under the Decree on Combating Minor Hooliganism should be treated as imprisonment and not, as it is now, as an administrative punishment. In line with this, legislative changes should be made in order to bring the procedures in line with the requirements of the European Convention of Human Rights, including the part pertaining to the time and possibility for effective familiarization with the charges, preparation of the defense, questioning of witnesses, etc.

The placement of children in juvenile reform schools (the so called educational boarding schools and social-

2 OBEKTIV

educational boarding schools) should be treated as deprivation of freedom. In line with this, the court procedures for placement in such institutions should be reformed, including the introduction of guarantees corresponding to the status of the minors placed in them.

They should include a definition of the elements of “antisocial behavior” and the appointment of attorneys during the procedure.

IV. FREEDOM OF EXPRESSION AND RIGHT TO INFORMATION Freedom of expression needs further encouragement in Bulgaria. The right to information is an area in which this country has yet to incorporate basic legislative guarantees. In this regard: • We expect to see an adequate law on the national electronic media that is capable of finally establishing an independent and effective regulatory body. The law must also regulate the status of the Bulgarian Telegraph Agency.

• In selecting the executive organs of the public media, their independence and political impartiality must be guaranteed.

• The regulatory agencies of the electronic media should be sensitive and effectively exercise their powers to punish hate speech, especially when it is directed towards Bulgaria’s vulnerable social groups.

• At the same time, legislative guarantees should be created whereby all kinds of public interests are able to find expression in the national media, on a non-discriminatory basis.

• We expect to see further reform of the Penal Code concerning defamation. Urgent changes are necessary to decriminalize the present crimes of “slander” and “libel,” while leaving civil liability to pay damages for such acts.

• We expect legislative reform concerning access to public information. Such reform should ensure effective access to public information of citizens, the media and nongovernmental organizations.

V. FREEDOM OF THOUGHT, CONSCIENCE, RELIGION AND BELIEF The freedom of thought, conscience, religion and belief has been, especially in the last several years, one of the most actively debated human rights issues in Bulgaria. Legislative reform is needed in almost every sphere that affects these freedoms.

The most pressing need is for fundamental reform in the legislation regulating the Church-State relation-

ships. The 2002 Denominations Act is clearly discriminatory and in violation of modern standards of regulation of the relationship between the state and religious communities. It has already been used to suppress the rights of the adherents of various religious creeds. The act needs to be fundamentally reformed or replaced with a new one. The new legislation should afford a possibility of equality among religious beliefs, as well as of religious entities and all other organizations based upon non-religious beliefs in every sphere of social life, including in the acquisition of the status of legal entities.

The possibility of government interference in the internal life of religious communities should be effectively eliminated.

The Substitution of Military Service with Alternative Service Act must be changed to widen the circle of organizations that are eligible to hire conscientious objectors wishing to complete their alternative service. This circle should include non-profit organizations. Changes should be made to allow conscientious objectors to waive their military service at any time, including after it has already begun.

VI. FREEDOM OF ASSOCIATION With regard to freedom to association, the Constitution of the Republic of Bulgaria and other legislation contain provisions with are unreasonably restrictive and openly discriminatory. We want to see legislative initiatives that address: • The laws that prohibit political parties in Bulgaria.

In several instances they have been interpreted too restrictively by some of the courts, including by the Constitutional Court. These provisions and court precedents create tension in the self-organization of civil society in Bulgaria, and have provoked the attention and legitimate concerns of international organizations.

• The decrees concerning the role of the Prosecutor’s Office in preventing the peaceful assemblies of citizens outside the scope of the Assemblies, Rallies and Manifestations Act. • The current tax regime for donations. This regime hinders the establishment of stable civic associations in Bulgaria.

vention on the Status of Refugees and the 1967 Protocol.

• We insist on the establishment of services that are capable of addressing all of the issues of refugees and asylum seekers, which arise outside the actual process of receiving refugee status.

• We insist that the Ministry of Justice promptly organizes diverse and effective forms of training of judges in refugee law.

VIII. PROHIBITION OF DISCRIMINATION ON THE BASIS OF ETHNICITY AND PROTECTION OF THE ETHNO-CULTURAL IDENTITY OF MINORITY COMMUNITIES We want to see progress in the future protection from ethnic discrimination and the reinforcement of the ethno-cultural rights of minorities. In order to achieve this, the new government should make an assessment and take measures towards bringing Bulgarian legislation in line with the Framework Convention for the Protection of National Minorities. The government also needs to affirm its commitment to the Framework Programme for the Equal Integration of Roma in Bulgarian Society.

Discrimination against ethnic minorities, and especially against the Roma, exists in many spheres of social life in Bulgaria. Despite progress made with the adoption of the Anti-Discrimination Act, the necessary preconditions have not been established for the enforcement of its provisions. The agency instituted by the law does not operate, and the law’s provisions are sometimes applied in too restrictive a manner by the courts. Severely limited access to free legal assistance in civil cases has made it difficult to take advantage of the court protections provided by the law. In this connection, we demand: -

The speedy injection of the necessary material and administrative resources into the Anti-Discrimination Commission, so that it may finally be able to begin to function.

-

Improvement of court practices regarding protection from ethnic discrimination.

-

State recognition, on a non-discriminatory basis, of the groups and associations of all citizens who, without external pressure, declare their belonging to a given minority.

-

The organization of an effective, non-discriminatory means by which the members of ethnic minorities in Bulgaria may study their native languages, and especially instruction in the Roma language.

-

The start of the effective desegregation of Roma

VII. PROTECTION OF REFUGEES AND ASYLUM SEEKERS Despite the progress that has been made over the last few years, there is still much to be done in this area: • We insist that changes are made in the currently effective Refugee Act, in order to bring the law in conformity with the standards of the 1951 Con-

OBEKTIV 3

education and improvement of the quality of education for the Roma in Bulgaria.

-

To start addressing other Roma issues outlined in the Framework Program for the Equal Integration of Roma in Bulgarian Society. These include, building the territorial infrastructure of Roma neighborhoods, stimulation of employment among the Roma, improvement of the social welfare system, the healthcare system, etc.

IX. PROTECTION OF PEOPLE WITH MENTAL DISORDERS People with mental disorders in Bulgaria are among the most vulnerable social groups. They need protection that currently the Bulgarian state is not ensuring to a sufficient degree. In order to improve the protection of people with mental disorders, we demand: -

That the material conditions in the institutions in which they are treated and live are improved.

That programmes for their social - including occupational - integration and rehabilitation are introduced. These programmes need to be combined with the de-institutionalization of care.

groups and those placed in institutions.

-

New legal rights for the special services working with children and handling issues related to the effective exercise of children’s rights, making it possible for them to work more effectively.

-

Effective counteraction against all forms and acts of corporal punishment, both in the family and in institutions.

-

Increased and improved effectiveness of oversight control over child sexual exploitation and drug addiction, including the establishment of special services handling those matters.

-

An overall increase in social assistance to families from vulnerable social groups, whose children, due to poverty, are unable to participate effectively in the education process.

-

Legislative guarantees and improved application of existing laws with regard to effective protection from child labour exploitation.

In addition, a separate package of urgent measures should be undertaken for the improvement of the conditions in children’s institutions. These should include, as a minimum:

-

An overall reform in the procedure for declaring such persons incompetent, both as a concept and as a procedure.

-

Introduction of training programs for the staff who takes care of people with mental disorders.

-

Effective de-institutionalization of care for children lacking parental care.

-

Introduction of a court procedure for the placement of people with mental disorders in social care institutions.

-

Strict adherence to the law regarding the placement of children in institutions and the use of institutionalization only as a measure of last resort.

-

Improving the medical services for persons who are not in the active phase of their illness.

-

-

Putting an end to all arbitrary seclusions and immobilizations.

Undertaking the necessary measures for the adequate education and socialization of children in institutions and of children with developmental disabilities.

-

Rethinking the place and role of such children’s institutions as special schools and juvenile reform schools.

-

Effective oversight over disciplinary practices and the prevention of violence, especially in institutions for juvenile delinquents.

-

Ensuring effective access to medical care for all children, by instituting the necessary legislative changes and the introduction of appropriate forms of medical care for children in institutions.

-

Introduction of a system for the periodic inspection of all children’s institutions by an independent agency.

X. PROTECTION OF THE RIGHTS OF THE CHILD The state and society have an obligation to the children of Bulgaria, and especially to those that are deprived of parental care. They are among the social groups in this country whose rights are violated most often, and they have the least possibility to defend themselves.

We want: -

The establishment of a national system for keeping track of the status of all the children in Bulgaria, with special attention to children from risk

Sofia, 17 October 2005

5 OBEKTIV