The Interior Ministry Act contradicts international treaties Yonko GROZEV
T
he right to life and prohibition of inhuman treatment are guaranteed in a number of international treaties to which Bulgaria is a party. Article 2 of the European Convention on Human Rights and article 3 of the International Covenant on Civil and Political Rights both guarantee the right to life. The standards for protection of these rights are directly applicable with respect to use of firearms by law enforcement officials or other state officials who can carry firearms. The first obligation of each country that is a party to these treaties is to adopt national legislation guaranteeing these rights. States parties are not obliged to accept literally the texts of the international treaties, but must adopt legislation that grants the same degree of protection. As for the use of firearms, which can affect the right to life and the prohibition of inhuman treatment, the Bulgarian state has failed to fulfill even its basic obligation to bring domestic legislation in line with international law. The use of firearms in Bulgarian legislation is regulated by the Interior Ministry Act in regard to police officers, and the regulations of the Penal Code. Most important is the text of article 80 of the Interior Ministry Act, which provides the possibility for use of firearms by law enforcement officials as a ·last resort” in several situations: ·armed attack or threat with a firearm”, ·during the release of hostages or kidnapped individuals” and in ·inevitable self-defense”. The law enforcement officials, however, are obliged to protect the life of the individual against whom they are using firearms, and the life of others. Although there might have been a more strict definition than that, these regulations in Bulgarian legislation are not themselves a problem. The serious discrepancy between the domestic legislation and the international law arises from the last two hypotheses of article 80, paragraph 1 of the Interior Ministry Act. These two hypotheses allow the use of firearms ·after a warning, during the apprehension of an individual that has committed or is committing a crime, if that individual is resisting arrest or is trying to escape” and ·after warning, for the prevention of the escape of an individual detained for a crime of a general nature”. The problem comes from the possibility to use firearms during the apprehension of an individual suspected of committing any kind of crime, even
a crime not involving violence against police officers or third parties. The possibility to the use firearms even when a person is suspected of committing a petty crime, such as shoplifting or document fraud, constitutes a direct contradiction of international law. The text of article 2 of the European Convention, which protects the right of life, sets a clear and strict standard. According to the practice of the European Court, the use of force that threatens human life, is absolutely necessary only if it serves to prevent a violation against the life and health of other people, citizens or police officers. This absolute necessity also requires that there is no other way to detain the suspected perpetrator. This is the meaning of absolute necessity in the use of firearms under the meaning of article 2 of the Convention. The United Nations standard is the same. According to article 3 of the UN Code of Conduct of Law Enforcement Officials, law enforcement officials may use force only when ·strictly necessary and to the extent required for the performance of their duty”. The commentary to the Code of Conduct states that the use of firearms is an extreme measure and should be applied only if ·the suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend [him]”. In 2005 and 2006, the European Court of Human Rights delivered two judgments in applications concerning violations of the right to life as a result of the use of firearms. In its judgment in the case of Nachova and Others v. Bulgaria, the Court held that the deaths of two conscripts who had fled from their army unit and were killed by a military police officer, violated article 2 of the Convention. In the case of Tsekov v. Bulgaria, the Court held that the use of firearms against a theft suspect, which resulted in his being injured, was a violation of the prohibition of inhuman treatment under article 3 of the Convention. In its decisions, the Court explicitly noted Bulgarian law’s contradiction with international law on the use of firearms. With this, the Court confirmed the long-standing criticisms of human rights organisations. Unfortunately, the judgments of the European Court were not sufficient, and article 80 of the Interior Ministry Act remained unchanged in February 2006 when parliament adopted amendments to this Act. OBEKTIV 17