Bulgarian Legislation About Homosexuals

Bulgarian Legislation About Homosexuals October 2001

Bulgarian Legislation About Homosexuals

A study by the Bulgarian Helsinki Committee, made possible thanks to the financial assistance of the Dutch Organization St. Fonds de Trut

INTRODUCTION This document is intended for foreigners who want to become acquainted with Bulgarian legislation dealing with homosexuals. The text forms the basis of another report, "Bulgarian and International Legislation About Homosexuals," prepared by Boyko Boev, a lawyer with the Bulgarian Helsinki Committee. The author expresses acknowledgement to Robin Brooks for the English translation.

The preparation of this report, as well as its translation into English, was made possible thanks to the financial assistance of the Dutch organization St. Fonds de Trut.

Table of Contents Criminal Law Situation of Sexual Minorities in Bulgaria General Discriminatory Prohibitions Related to Sexual Minorities A Historical Look at Criminal Responsibility in Homosexual Acts Analysis of Currently Acting Criminal Legislation Violation of the Consent of the Sexual Partner Homosexual Acts With Persons Under The Age Of 16 Homosexual Acts with Minors and with Persons who Do not Understand the Meaning and Nature of the Acts Crimes against Sexual Morals Homosexual Prostitution Discriminatory Police Practices Crimes Motivated by Homophobia Marriage and Cohabitation in Bulgarian Law Marriage Domestic Partnership in Bulgarian Law Protection from Discrimination Based on Sexual Orientation in Bulgaria The Constitution and the Constitutional Court's Intepretive Desicion of 1992 Other Anti-Discrimination Laws Protection of Dignity The Process of Unification With the EU and the Legislation and Practices That Discriminate Against Homosexuals

CRIMINAL LAW SITUATION OF SEXUAL MINORITIES IN BULGARIA This study of the criminal law situation of sexual minorities in Bulgaria examines discriminatory prohibitions related to sexual minorities, discriminatory police practices, judicial orders that indirectly limit the rights of sexual minorities, discriminatory practices in prisons, and prosecution of acts motivated by homophobia.1 GENERAL DISCRIMINATORY PROHIBITIONS RELATED TO SEXUAL MINORITIES The Bulgarian Penal Code makes a distinction between heterosexual and homosexual persons as perpetrators of crimes. Homosexuals are criminally responsible in cases of criminal acts related to the sexual inviolability and normal physical and moral development of minors. The distinction of subjects in this way does not apply to all crimes of this type. Both heterosexuals and homosexuals may, for example, perpetrate debauchery. This distinction is made only in cases of criminal acts in which the consent of the sexual partner or societal morals are violated. The different approach to heterosexual and homosexual perpetrators in these cases manifests itself in the existence of separate legal texts related to them, in the criminalization of acts only when they are perpetrated by homosexuals, and in more severe punishments for criminal homosexual acts.

A HISTORICAL LOOK AT CRIMINAL RESPONSIBILITY IN HOMOSEXUAL ACTS The oldest known written Bulgarian and Slavic legal monument - the "Law for Judging the People" ("Закона за съдене на людите") from the end of the 9th century - contains no texts criminalizing homosexual acts. The likely reason for this was the need to settle the most important and urgent legal questions of that time - just after the Bulgarians' baptism into Christianity 2. The first known text in Bulgarian law that stipulates criminal responsibility for homosexual acts is the Byzantine Ekloga 3. It was translated into Slavic at the time of Tsar Simeon's reign (893-927 a.d.). Text 38 of Title 17 criminalizes male homosexuality 4. The text itself states: "Male homosexuals, both the active and the passive, should be punished with death by sword. If the passive perpetrator is younger than 20 years old, he should be forgiven, because his age shows that he does not know what he has tolerated."

Criminal responsibility applied only to sexual relations between men. These relations were prosecuted especially severely by the state, given the severity of the punishment and the fact that other sex crimes, such as debauchery and rape, were punished more lightly - with the severing of the perpetrator's nose.

The first criminal law since Bulgaria's liberation, passed in 1896, also stipulates criminal responsibility for male homosexuality 5: "For male homosexuality (pederasty) between persons older than 16 years of age, as well as for sodomy, the punishment is confinement to a dark cell for 6 months."

Here again, punishment applies only to sexual relations between men, and the punishment is significantly lighter than in the old law A general article stipulating criminal responsibility for all homosexual acts exists in the changed Criminal Code from 1951: "For sexual intercourse or acts of sexual satisfaction between persons of the same sex, the punishment is deprivation of freedom for 3 years.

If such acts are committed through force or through the abuse of situations of dependency, or if they are committed upon persons younger than 14 years old, the perpetrator is punished with deprivation of freedom for 2 to 5 years."

The legislature individualizes here for the first time the acts in the commission of a crime. These are the sexual intercourse and acts of sexual satisfaction. For the first time, the text applies not only to men, but also to women. The latter was made possible with the inclusion of acts of sexual satisfaction in the provision. By this inclusion the legislator intended to incriminate sexual relations between women. The punishment of deprivation of freedom is increased to 3 years.

For the first time an aggravation of the crime is added, referring to the use of force or the abuse of situations of dependency during the commission of deliberate acts. A 1956 amendment also stipulates a more severe punishment in cases where homosexual acts are performed with persons under the age of 14.

ANALYSIS OF CURRENTLY ACTING CRIMINAL LEGISLATION The Criminal Code in force at the moment in Bulgaria was passed in 1968 and by May 2001 had already been changed and amended 45 times. With the adoption of this code, homosexuality was decriminalized for the first time in modern Bulgaria. The only homosexual acts that remain crimes are those that violate the consent of the sexual partner or societal morals 6.

The crimes of homosexuality are covered in Section VIII of the Criminal Code, the section dedicated to depravity. The legislator's approach to the perpetrators of criminal acts that represent depravity is a dual one. For most crimes the legislator does not distinguish the sexual identity of the perpetrators.

Discrimination against the perpetrators exists only in cases of violation of the consent of the sexual partner and of societal morals.

An example of a non-discriminatory attitude may be found in articles 149 and 150, which refer to the crime of debauchery and its two forms - with persons under the age of 14, and with those 14 years of age and older 7. In this article, the sexes of the perpetrator and the victim of the crime do not matter.

They may be of different sexes or both of the same sex 8. The deliberate acts of debauchery may be any acts (for example petting, touching, kissing) aside from sexual intercourse. They must not lead to sexual satisfaction, as they do in the crimes of article 157 (see below), but may have that satisfaction or the arousal of sexual desire as their goal only.

The main subject of this report is article 157, since this is the one containing discriminatory prohibitions referring exclusively to homosexual persons. Article 157 defines as a crime any homosexual act that violates the consent of the sexual partner or societal morals.

Violation of the Consent of the Sexual Partner The legislature defines cases in which the consent of the sexual partner is violated. At the same time, it defines persons who are unable to give their legal consent to commit homosexual acts, and it stipulates criminal responsibility for sexual relations with such persons.

Deliberate acts in all parts of this article include:  

Sexual intercourse with persons of the same sex; Homosexual acts of sexual satisfaction with persons of the same sex

Legal theory and case law define sexual intercourse as a sexual phenomenon possible only in relations between homosexual men 9. Logically that definition stems from the distinction of sexual intercourse and acts of sexual satisfaction. According to the Supreme Court sexual intercourses are initiated by men, while acts of sexual satisfaction are initiated by women 10.

Both sexual intercourse and acts of sexual satisfaction have implied goals. In the first instance - sexual intercourses - the goal is reached by the perpetrator's introduction of the sexual organ into his sexual partner's anus. In the second case - acts of sexual satisfaction - the goal is attained when perpetrator reaches orgasm 11. Accordingly, the Supreme Court's position in decision № 77 of 18 February 1981, notes a difference between the debauchery in Article 149 and the acts of sexual satisfaction in Article

157 of the Criminal Code (for the differences between the two texts see below).

Ways of Violating the Consent of the Sexual Partner From an objective point of view, the criminal offense in paragraph 1 of Article 157 has been committed when the sexual partner's consent has been violated. This consent may be violated through:  

Use of force or threat Abuse of a position of dependence or guardianship

The perpetration of sexual intercourses or acts of sexual satisfaction with persons unable to defend themselves are equated with these cases of violations of consent.

Use of force or threat Once force is used, the crime is dual, since the perpetrator's criminal actions include both illegal use of force or threat and the commission of homosexual acts. This being true, it is possible that there might be cases of attempted crimes, in which force or threat is used, but they do not lead to commission of the homosexual acts themselves.

For the act to be criminal, force or threat must be used with the goal of committing sexual intercourse or homosexual acts of sexual satisfaction. This goal distinguishes attempts to commit the acts in question from the use force that is punishable by Article 143 of the Criminal Code 12. The latter article is not specific to acts affecting the sexual inviolability of the victim 13.

When force leading to the victim's moderate or severe bodily harm is used, and when this force is accompanied by the commission of homosexual acts, the perpetrator is criminally responsible for two crimes: causing bodily harm and criminal homosexual acts. If the prescribed punishments are of the same type, the court may increase the heavier of the two prescribed punishments at most by half, but the new increased punishment may not exceed the sum of the two separate punishments, nor the maximum legally allowable punishment of that type 14.

Abuse of situations of dependency or guardianship The abuse of situations of dependency or guardianship for the commission of homosexual acts has occurred when the victim is unable to express his or her wishes because of his or her special relationship with the perpetrator. This law is in accordance with the Criminal Code's section on "rape" and with the text of Article 153, which, however, refers only to relationships between members of the opposite sex 15. "Dependency" may be either financial or official. "Guardianship" is present when the victims are interned in psychiatric hospitals or prisons or when they are handicapped.

If the perpetrator has threatened to abuse the victim's position of dependency, the crime is use of threat (see below), and not abuse of a situation of dependency or guardianship. The victim must be aware of the perpetrator's ability to negatively influence the victim's interests, and this alone must be the main factor preventing the victim from exercising his or her free will.

From a subjective point of view, a crime may be committed only in the presence of direct premeditation. The perpetrator must have been aware of the victim's lack of consent. Otherwise premeditation is not present.

In contrast to the crime punishable by Article 153, the punishment stipulated for Article 157's homosexual acts committed through the abuse of official or financial dependency is more severe. The punishment for the offense in Article 153 is imprisonment for up to three years, while for the offense in Article 157 it is up to five years imprisonment and public censure.

Depriving the victim of his ability to defend himself

In order for a crime to be committed under this text, it is necessary that the victim is not deprived of his/her ability to defend himself/herself with his/her own consent. For example, the victim's ability to defend himself/herself may be impaired by his/her own old age or poor health, or if he/her is drunk, intoxicated or loses consciousness. For acts to be punishable under this text, threats or force must not be present. If they are, the punishable crime is commission of criminal homosexual acts through use of threat or force.

According to Article 152, paragraph 1, item 1 of the Criminal Code, this crime is the equivalent of rape if intercourse is committed with a person deprived of his ability to defend himself and without his consent. The difference is that rape may be committed only against female victims and by male perpetrators. The punishments also differ. The punishment for rape is imprisonment from two to eight years and repeated offenses do not carry the cumulative punishment of public censure 16. Crimes that violate Article 157 of the Criminal Code carry a lighter punishment - one to five years' deprivation of freedom, and public censure, which is cumulative (i.e. imposed together with imprisonment).

Homosexual Acts With Persons Under The Age Of 16 Article 157, paragraph 2 stipulates criminal responsibility for perpetrators who commit homosexual intercourse or acts of sexual satisfaction with persons under the age of 16.

The legislature regards homosexual acts with such persons as violations of sexual morals. The conception of sexual morals is different when regarding heterosexual sexual acts. In the case of heterosexuality, this conception allows (and therefore there is no legal prohibition on) sexual acts between consenting partners 14 years of age and older.

An understanding of the content of these so-called "sexual morals" is aided by a look at the historical interpretation of the decree in Paragraph 2 of Article 157.

In the original version of the Criminal Code of 1968, criminal responsibility was stipulated for adults (i.e. persons over age 18) who have committed homosexual acts with minors 17. Adults were expressly specified. In its amendment to the law in 1986, the legislator broadened the specification of who bears criminal responsibility by replacing the word "adult" with the phrase "anyone who." In this way, even perpetrators under the age of 14 became criminally responsible for homosexual sexual intercourses and acts of sexual satisfaction with minors 18.

Of special importance is the age at which the law recognizes that a person's consent may have legal consequences. In other words, it is important to note at what age a person may give his consent to participate in homosexual acts, so that his sexual partner will not risk criminal punishment for the acts.

Until 1986 the age at which a person's consent to participate in homosexual sexual intercourses and acts of sexual satisfaction relieved his partner from criminal responsibility for the acts was 18. In 1986 this age was reduced to 14. In this way, the age of consent for homosexual acts was made equal with that for legal sexual acts committed by heterosexual persons.

In 1997 the law was changed again when the legislature prohibited homosexual sexual intercourses and acts of sexual satisfaction with persons under the age of 16 19.

The consent of persons under the age of 16 has a dual legal significance. Even if consent is given for participation in homosexual acts, this consent does not prevent punishment according to Paragraph 3.

If, however, consent is not given, then the qualification of the previous paragraph, Paragraph 2, is present. Specifically, the punishable act becomes commission of sexual intercourses or homosexual acts of sexual satisfaction with persons of the same sex through the use of force or threat. This distinction is purely formal, since the stipulated punishments for the two crimes are exactly the same imprisonment for one to five years and public censure.

The perpetrator must be aware of the victim's age. Otherwise, the acts are not considered criminal.

The direct object of this crime is the same as that of criminal sexual intercourse with juveniles under

Article 151 20. The difference is the higher age of consent required of participants in homosexual sexual intercourses and acts of sexual satisfaction to relieve their partners of criminal responsibility for those acts, as well as the different punishments. In cases of intercourse with any juvenile partner the punishment is deprivation of liberty for two to five years, whereas the punishment for homosexual acts with persons under the age of 16 is deprivation of liberty for one to five years.

Homosexual Acts with Minors and with Persons who Do not Understand the Meaning and Nature of the Acts Paragraph 3 of Article 157 criminalizes homosexual sexual intercourses and acts of sexual satisfaction that are committed by adults with minors or with persons who cannot understand the meaning and nature of the acts.

There are two possible victims of the crime in this paragraph: minors and mentally handicapped persons.

Once again, an understanding of the current law on sexual relations with minors requires a look at its historical development.

As indicated above, the original 1968 version of the Criminal Code criminalized homosexual sexual intercourses and acts of sexual satisfaction committed by adults with juveniles and minors. That wording allowed two juveniles or two minors to engage in these acts with one another without breaking the law. In 1986 the legislator, probably with the goal of protecting juveniles, stipulated that all mentally responsible persons, whether adults or minors, are criminally responsible for the commission of the homosexual acts in question with juveniles. In 1997 the legislature, in order to provide even more protection to children, raised the age of legally relevant consent for participation in homosexual sexual intercourses and acts of sexual satisfaction from 14 to 16 years of age.

The 1986 amendment and the changes of 1997 made the law less clear and more complicated to understand. Since then, the approach to juvenile and minor participants in homosexual acts can be described as follows: 1. The law does not prohibit adults from committing homosexual sexual intercourses and acts of sexual satisfaction with other adults.

2. The law does not prohibit minors over the age of 16 from committing homosexual sexual intercourses and acts of sexual satisfaction with other minors over the age of 16 or with adults. (The adults involved, however, are criminally responsible for their participation in the homosexual acts with the minors over the age of 16.)

3. The law prohibits persons under the age of 16 from committing homosexual sexual intercourses and acts of sexual satisfaction.

The situation for mentally handicapped persons is clearer. These persons cannot give the legally relevant consent that is required for participation in heterosexual and homosexual sexual intercourses.

The legislator probably had in mind the prevention of additional mentally handicapped offspring in the heterosexual sexual intercourses 21.

If the mentally handicapped victim resists participation in the acts, Paragraph 1 will be enforced, instead, to punish the use of force or threat.

Because of the victim's mental handicap, the text of Article 151, paragraph 2 of the Criminal Code is similar to that of Article 157, Paragraph 3 22. The crime in the first provision is punishable with deprivation of liberty for up to three years, whereas the punishment for the crime in the second provision is deprivation of liberty for one to five years.

Crimes against Sexual Morals From its initial passage in 1968 the Criminal Code has contained two provisions that significantly limit the freedoms of persons to engage in legal homosexual acts. The first provision incriminates homosexual acts in public places and homosexual acts performed in a scandalous manner or in a manner that may incite others to follow a path of perversion 23. The second criminalizes homosexual prostitution 24. The commonality between these two provisions is that they both criminalize indiscretion or public manifestations of homosexuality.

The type of homosexual acts that are criminalized by the last two paragraphs of Article 157 is not clear. This vagueness stems from the way the law is formulated. Paragraph 4 refers to "anyone who engages is homosexual acts in public places . . . " and Paragraph 5 refers to "anyone who engages in homosexual acts with the goal of procuring material benefit . . . " In contrast to the previous paragraphs, which refer specifically to sexual intercourses and acts of sexual satisfaction between persons of the same sex, the legal language of the last two paragraphs gives the impression that these paragraphs refer to any and all homosexual acts, and not only to the two acts specified above.

Interpretation of the two final paragraphs is complicated by the fact that there is no existing legal practice related to these crimes. According to legal theory, (Stojnov and Kornazhev), these two paragraphs criminalize homosexual acts treated as criminal in the previous three paragraphs of the Article, that is homosexual sexual intercourses and acts of sexual satisfaction.

Another interpretation is possible. Specifically, all homosexual acts performed in public places and all homosexual acts performed in a scandalous manner or in a manner that may incite others to follow a path of perversion, and all homosexual acts performed for the purpose of procuring material benefit may be interpreted as punishable by this law. The basis for this interpretation is the intent of the law, which is the protection of sexual morals. In concrete cases the protection of the latter is manifested through the seeking of criminal responsibility not for certain homosexual acts, but rather for indiscrete forms of homosexuality.

Paragraph 4 refers to three crimes. These are:   

Homosexual acts in public places; Homosexual acts performed in a scandalous manner; and Homosexual acts performed in a manner that may incite others to follow a path of perversion.

A "public" homosexual act in the broad sense of the term is present when two men hold hands while walking, in this way publicly demonstrating their homosexual relationship 25.

In order for a homosexual act to acquire the designation "scandalous," it must outrage observers with its indecency, i.e. it must contradict the rules for order and decency that are generally accepted in society 26.

Incitement requires the active behavior of one of the two parties. Incitement suggests acts that predispose and convince the victim to behave a certain way, without offering him/her material incentives, since in the latter case the "victim" would be punishable under the text of Paragraph 5.

Paragraph 4 punishes inciting people toward "perversion." The legislator makes clear that it is not indifferent to homosexual manifestations and condemns such behavior. It also expresses a belief, popular in the past, that homosexuality can be "caught" like an illness by people who have contact with homosexual persons.

Homosexual acts that are indiscrete or that are performed in public places therefore are punishable.

Discretion is a legal condition similar to the age of legally relevant consent for participation in homosexual sexual intercourses and acts of sexual satisfaction.

Despite its unclear content, this provision stipulates a severe punishment - imprisonment. The court may also decide to impose an alternative punishment called "corrective labor." The latter affects the

labor rights of the convicted. It may also affect his/her right to receive his/her full salary, as well as his/her right to use hi/hers annual vacation and unpaid leave. The time served in corrective labor does not count towards the condemned's work record, which is relevant for his/her ability to collect a pension upon retirement. The corrective labor punishment may be prescribed for a period of three months to one year. According to the Criminal Code, the convicted serves out this punishment in his/her regular place of employment, and convicted persons who are not employed in offices, factories, cooperatives, or public organizations serve out their punishments at an appropriate job in the neighborhood where they live. For disabled people and those who cannot be sent to work, the court may substitute a fine of up to 50 leva (about 23 U.S. dollars) for the sentence of corrective labor. If the convicted refuses to work without a good reason, the court may substitute corrective labor with imprisonment. In this case, the convicted serves one day in prison for every three days of the imposed sentence to corrective labor. For multiple offenses, a cumulative punishment of deprivation of freedom may be imposed.

Homosexual Prostitution Paragraph 5 criminalizes homosexual prostitution in both of its forms: passive and active. The difference between the two is in whether the perpetrator receives, agrees to, or provides material benefits for his commission of homosexual acts.

Material benefit is understood as monetary instruments or articles with trade value. The material benefit must be the goal and motive of the commission of the homosexual acts.

In contrast to the incitement towards homosexual acts in the sense of Paragraph 4, the crime of convincing a person to commit these acts requires provision or promise to provide material benefit. For the latter to be criminal, homosexual acts must be committed.

The punishment stipulated for this crime is deprivation of liberty for up to three years and a fine of 300 leva (about 140 U.S. dollars), which is imposed cumulatively. The court has the ability to impose an additional punishment - compulsory domicile. When this punishment is imposed, the convicted loses the right to leave the place where he lives. He may leave his neighborhood only with permission from the appropriate prosecutor or other state authority, and may do so for up to ten days and nights at a time, but not more than twenty days and nights per year. Since compulsory domicile is imposed together with the deprivation of liberty, the former punishment is served out after the condemned is released from prison. The condemned is required to work. Compulsory domicile may be imposed for one to three years.

The text on agreeing to material benefit resembles that of Article 155 (1) of the Criminal Code, but in cases of homosexual prostitution the additional punishment of compulsory domicile may also be imposed 27.

Imposition of Article 157 of the Criminal Code In recent years, the number of people prosecuted of crimes under the various parts of Article 57 varies between 10 and 37 people per year.

Age

1993

1994

1995

1996

1997

14-17

3

18-29

6

30-39

-

1998

7

1

2

4

1

5

10

6

7

19

7

3

3

1

3

40-49

-

-

2

1

1

2

50-59

1

1

2

-

-

-

Over 60 Total

-

-

-

-

-

2

10

20

18

12

18

37

It is noteable that the people prosecuted under these texts are exclusively men. All of them were

prosecuted for crimes under the first three paragraphs of Article 157. Not a single person was prosecuted for performing homosexual acts in public, for performing homosexual acts in a scandalous manner or in a manner that might incite others to follow a path towards perversion, or for homosexual prostitution 28.

The National Statistical Institute does not require the collection of information about crimes committed under the separate paragraphs of Article 157. The five paragraphs are instead divided into two groups.

The first group includes crimes under Paragraphs 1, 4, and 5, and the second group includes Paragraphs 2 and 3. For this reason, it is impossible to make a criminological analysis of the separate crimes prosecuted under Article 157.

The National Statistical Institute's data on crimes committed and persons prosecuted shows that the average number of people prosecuted annually for crimes under Article 157 is about 7 percent of the average number prosecuted under Chapter VIII, the Criminal Code's chapter on debauchery, about 11 percent of those prosecuted under Article 152 on rape, and less than one percent of the total number of prosecuted persons.

CONCLUSIONS AND RECOMMENDATIONS: 1. The texts of Article 157 should be made less vague.

The construction of Article 157 is complicated and the individual parts of the law are too vague. The Supreme Court itself admits to this vagueness in Decision № 464 of 14 December 1999. The Court indicates that "(The parts) are mixed more than is necessary."

Courts commonly confuse debauchery and homosexual acts with juveniles and minors. Some judges (see the position of the District Court in the Supreme Court's Decision № 7 of 18 February 1981) think that the debauchery punishable under Article 149 may occur only between persons of the opposite sex. The Supreme Court takes another point of view in its decisions of 1979 and 1981. In 1992, however, the Supreme Court revised its position and in Decision № 33 of 25 February 1992 specifies that "All forms of criminal acts of debauchery, when performed between persons of the same sex, should be sanctioned with the special laws on illegal homosexuality." The decision in question followed a case dealing with the commission of sexual intercourse. Despite that, the court found it necessary to make its pronouncement in this generalized way. The court extracted an argument from Article 158, according to which there is no criminal responsibility for debauchery if the man and woman involved in the case become married before the case is heard in court.

For the above reason, it is recommended that future changes to the law should seek a clearer language, in conformance with the requirements placed upon laws at the European Court in Strasbourg, and that illegal behavior must foreseeable by the people.

2. The age of legally relevant consent for participation in sexual acts should be made equal for homosexual and heterosexual acts.

Presently the law discriminates against homosexual persons, since the specified age at which a person may give his legally relevant consent to participate in sexual acts is different for homosexual and heterosexual acts. Examples of this type of discrimination may be found in other countries, especially in Eastern Europe.

In the past few years, the tendency has been for countries to overcome this inconsistency through changes in their laws 29. Of thirty-four member states of the Council of Europe in 1995, twenty-two of them specified the same age of consent for legal sexual acts for homosexuals and heterosexuals 30.

The European Commission for the Protection of Human Rights had the opportunity to make a statement in the case Sutherland against United Kingdom. In that case, the plaintiff protested the inequality of British laws affecting homosexual men on the one hand, and lesbians and other persons on the other hand. These two separate sets of laws stipulated different ages at which members of the two groups could give their consent to participate in sexual acts. The European Commission found a

violation of Mr. Sutherland's right to privacy, as well as discrimination against him because of the fact that there was no objective and rational reason for the existence of the higher age of consent for homosexual acts between men. As a result, the British Parliament changed its law and made the ages of consent equal for all groups. After the law was changed, Mr. Sutherland withdrew his complaint, and the European Court did not get the opportunity to hear the case 31.

The Parliamentary Assembly of the Council of Europe also recognizes the discrimination that exists between homosexual and heterosexual persons in many countries as a result of the different ages of consent for participation in sexual acts. The Assembly has called upon the member states of the Council of Europe to impose the same ages of consent for everyone 32. This is the position of the European Parliament and the European Union 33.

In looking over the report on the state of human rights in Australia, the UN's Committee on Human Rights also made a statement against the discriminatory difference in the ages of consent for homosexual and heterosexual persons. The Committee required Australia to remove the discriminatory texts from its legislation 34.

3. The different approaches to seeking criminal responsibility from heterosexual and homosexual persons for sex crimes should be removed, in accordance with the requirement of the European Parliament of the European Union in its Resolution on Equal Rights for Homosexual Men and Lesbians 35.

3.1 The Criminal Code should not contain texts that differentiate sex crimes based on whether the perpetrators are homosexual or heterosexual persons. Orientation-neutral approaches to sex crimes have been accepted in many European countries: Andorra, Belgium, the Czech Republic, Finland, France, Malta, the Netherlands, Sweden, and Switzerland 36.

3.2. The Criminal Code should not contain special texts that refer only to homosexuals. For example, it should not contain a separate text about homosexual prostitution.

3.3. The punishments for the same crimes, committed by homosexual and heterosexual persons, should not be different. A positive example of the equality of punishments for the two groups can be found in Polish legislation. 37 4. Outdated moral texts that are not enforced should be removed.

Paragraphs 4 and 5 of Article 157 have no practical use as an instrument of the protection of societal morals and order. Evidence for this view is the fact that there is no data suggesting that criminal responsibility has been sought from perpetrators of the crimes in question during the past ten years.

Moreover, countries whose legislation does not contain such texts do not have an increased incidence of criminality or anti-social behavior. In the case of Modinos against Cyprus, the European Court indicated that, although such laws are not enforced, their existence has a stigmatizing effect and therefore they must be removed 38.

The requirement that all homosexual acts (not only sexual intercourses and acts of sexual satisfaction) be discrete is discriminatory, since the legislature does not place similar requirements on heterosexual acts. According to the current texts, it is possible to seek criminal responsibility from homosexuals for any expression of their sexual orientation.

Finally, the prohibition of homosexual acts in public places is too broad, and does not meet the requirements for a "necessity in democratic society." In the case of Hendiside, the European Court indicated that the necessities of such a society are "pluralism, tolerance, and open-mindedness."39 The European Union recommends the abolition of criminal prosecution for homosexual acts viewed as violations of social order or as perversions. The goal of such abolition is to guarantee the equal rights of lesbians and homosexual men 40.

Bulgarian law provides the possibility for societal morals to be protected through the enforcement of other special laws (Article 325 of the Criminal Code, which criminalizes hooliganism, and the Ordinance on Petty Hooliganism).

5. Insulting language should be removed.

The use of the word "perversion" as a synonym for homosexuality is a holdover from the ideology of a regime whose time has gone. Under conditions of democracy, use of such language is inappropriate.

DISCRIMINATORY POLICE PRACTICES Discriminatory attitudes of police officers towards sexual minorities are no different from discrimination against any other minorities.

Until now, no information has been collected on cases of homosexual victims of police violence and arbitrariness. Individual cases 41 provide evidence indicating the presence of the following discriminatory practices: 1. Police officers seek information of a personal nature about homosexual persons who are victims of violence. This information is of no relevance to the prosecution of the crimes against those victims 42.

2. Police officers refuse to register cases of brutality committed against representatives of sexual minorities and do not conduct investigations that would seek criminal responsibility from the perpetrators of crimes motivated by homophobic predjudice. The passive behavior of the police is an expression of the state's desire to ignore and to not protect the violated rights of homosexuals and persons with different sexual behavior in society.

3. Police have conducted unprovoked actions in bars frequented by homosexuals.

RECOMMENDATIONS: It is necessary that a research be made into the attitudes of police officers towards homosexuals and that information about cases of police arbitrariness be collected.

Training courses are necessary for police officers and investigators, to teach them about crimes motivated by homophobia. The Parliamentary Assembly of the Council of Europe calls upon member states of the Council of Europe to take positive measures in the fight against homophobic police practices 43.

Police officers must be required to register cases of violence motivated by homophobia and to take measures to protect the victims.

CRIMES MOTIVATED BY HOMOPHOBIA Bulgarian legislation contains no laws that refer specifically to perpetrators of crimes motivated by homophobia, despite the fact that the Council of Europe considers homophobia to be equivalent to racism 44. In the Criminal Code, homosexuals are only singled out when they are the "subjects" of a crime (i.e. when they are the perpetrators), and not when they are "objects" (i.e. victims of a crime).

Judicial and police organs do not express any eagerness to collect evidence about the homophobic motives of those who perpetrate crimes. Judges are not obliged to consider such motives as aggravating the circumstances of guilt, nor to impose more severe punishments when homophobic motives are present.

RECOMMENDATIONS:

Member states of the European Union are required to seek criminal responsibility from perpetrators of violence motivated by homophobia. In 1994 in response to the Roth Report on forms of discrimination based on sexual orientation in the European Union, the European Parliament passed a resolution calling upon the member states to take measures towards the reduction of violence against homosexuals and to seek criminal responsibility in cases of such violence 45.

A complete research on the manifestations and spread of homophobia is necessary. Practice shows that such studies may be sponsored by the states that take legal measures in the fight against homophobia 46.

Sexual orientation must be recognized as an independent motive, legally equivalent to race, religion, and the other categories, on the basis of which crimes are committed against individuals. First and foremost, the state must recognize the existence of hatred toward homosexuals as a possible motive for the perpetration of violent crimes. The existence of legislation recognizing homophobia as a motive will have the effect of reinforcing current practices of punishing violent crimes according to general laws against causing bodily harm and murder. Such legislation would also provide the opportunity for criminologists and sociologists to study societal attitudes toward sexual minorities and to investigate the level of crime against them. The existence of such legislation might lead to the appointment of the financial and human resources necessary to train and prepare the police and judicial organs for the fight against intolerance and homophobia.

MARRIAGE AND DOMESTIC PARTNERSHIP IN BULGARIAN LAW

MARRIAGE In different societies and epochs the legal arrangements related to marriage have changed. This particularity must be kept in mind during any analysis of domestic family law and every attempt to reform family relations.

In Bulgaria, as in most countries of the world, marriage is a specific civil contract, concluded before a state organ 47 and available to two persons of the opposite sex. This final requirement makes marriage inaccessible to homosexual couples.

DOMESTIC PARTNERSHIP IN BULGARIAN LAW Although the existing conservative model of marriage does not satisfy society, and although many people live together outside of marriage, Bulgarian legislation still does not recognize domestic partnerships as a juridical fact that gives rights and responsibilities to its parties. For this reason, partners see no changes in their personal or material relations when they decide to cohabitate outside of marriage.

Domestic partnership is not a legal basis for one partner's changing his or her surname. It does not lead to spousal material commonwealth between the partners. Among the responsibilities taken on by the partners in their life together, the only ones legally enforced are those listed in the civil law. When they have a common business, their relations are regulated by the rules of commercial law. If they break up, the partners have no access to the legally recognized rights of a spouse in a divorce.

Current and former partners in cohabitation have no right to alimony or financial support.

Although the Supreme Court has long accepted that de facto spousal cohabitation is a basis for the seeking of non-material damages in cases of one partner's death, there is still no case law on complaints filed by same-sex partners 48. It can be assumed that such complaints might be successful, keeping in mind the fact that in these cases the court should be guided by fairness and the understanding that a close relationship existed between the partners.

Cohabitation is not a legal basis for inheritance, since partners are not included in the legal circle of heirs. Therefore, domestic partners may inherit from one another only when there is a last will and

testament. The taxes on such an inheritance are higher than the taxes imposed on inheritances received by a legal spouse 49. Domestic partners inheriting through a will also have no right to a preserve part of the estate 50.

Cohabitating partners have no parental rights over the children of the other partner. It is possible, however, for one partner to legally adopt the other's biological children. The adoptive parent must not be legally incapacitated, must not have been stripped of his or her parental rights by the courts, and must be at least 15 years older than the adopted child 51. It is not possible for cohabitating couples to adopt orphans, since the law requires adoptive couples to be married.

PROTECTION FROM DISCRIMINATION BASED ON SEXUAL ORIENTATION IN BULGARIA As of late August 2001, Bulgarian legislation contains one constitutional provision against discrimination, as well as a few anti-discrimination provisions in other individual laws. There is no special law for equal opportunity or against discrimination. Sexual orientation is left out of the list of social characteristics on whose basis discrimination is legally prohibited. In other words, victims of discrimination on the basis of sexual orientation have no right to protection.

THE CONSTITUTION AND THE CONSTITUTIONAL COURT'S INTERPRETIVE DECISION OF 1992 The currently effective Bulgarian Constitution of 1991 proclaims that one of its fundamental principles is the equality of citizens. Article 6 states: "(1) All people are born free and equal in dignity and rights.

(2) All citizens are equal before the law. There may be no limitations of rights or privileges based upon race, nationality, ethnic identification, sex, descent, religion, education, beliefs, political affiliation, personal and social situation, or economic condition."

The Constitutional Court of the Republic of Bulgaria has referred to the principle of citizens' equality tens of times. From the beginning of its mandate, the Court has had the possibility to examine the nature and expanse of this principle.

One opportunity to do so was presented by Case â„– 14 of 1992. This case concerned the interpretation of Article 6 of the Constitution. The proceedings were initiated following a request by then-President Zhelju Zhelev's for a decision on whether the designated social characteristics on whose basis rights and privileges must not be limited were exhaustive or only suggested examples.

By Decision â„– 14 of 10 November 1992, the Constitutional Court pronounced that the list of social characteristics on whose basis rights and privileges must not be limited, designated in Article 6, paragraph 2 of the Constitution, was exhaustive.

The Constitutional Judges employed the following arguments about the social characteristics in question and about the exhaustive nature of the list in Article 6, Paragraph 2: "Article 6, Paragraph 2 designates certain social characteristics, on whose basis people must not be subjected to unequal treatment. These are race, nationality, ethnic identification, sex, descent, religion, education, beliefs, political affiliation, personal and social situation, or economic condition. The Constitution expressly states the prohibitions related to the designated social characteristics.

Changing this list would be a basis for limiting rights or creating privileges. An exact and exhaustive list of social characteristics on whose basis limitations of rights and provision of privileges are not allowed is a guarantee against the unfounded broadening of the bases for awarding rights and privileges to citizens. Limitation on the rights stipulated in other parts of the Constitution is allowable only in cases

of social necessity, providing that the priority of the principle of equality is observed."

The Constitutional Court's decision was signed by eleven constitutional judges, with only one dissention, which, however, was related not to the content of the decision itself, but rather to the admissibility of the complaint.

The Constitutional Court's decision excludes sexual orientation from the designated social characteristics on whose basis discrimination is prohibited. In other words, the court affirmed that in cases of discrimination on the basis of sexual orientation, the law provides no protection to victims. A change in the current position of the court is possible, but only in the presence of "strongly motivated juridical" complains in concrete cases 52.

OTHER ANTI-DISCRIMINATION LAWS As of late August 2001, anti-discrimination texts exist in the following laws: The Labor Code (prohibits discrimination in the exercise of rights and responsibilities of labor relations), the Code of Tax Procedures (prohibits discrimination in tax hearings), The Code of Criminal Procedures (prohibits discrimination in criminal hearings), the Law on Higher Education and the Law on National Illumination (prohibit discrimination in the exercise of education rights), the Law on Additional Voluntary Retirement Insurance (prohibits discrimination in the provision of retirement insurance), the Law on Social Welfare (prohibits discrimination in the social welfare system), the Law on Defense and the Armed Services of the Republic of Bulgaria (prohibits discrimination in conscription of military personnel), the Law on Unemployment Protection and Stimulation of Employment (prohibits discrimination in the provision of social benefits to the unemployed), the Law for the Protection of Children (prohibits discrimination in the provision of protection to children), the Law for Radio and Television (prohibits the broadcast of advertisements based on discrimination) and the Law on Physical Education and Sports (declares a war against all forms of social discrimination in sports).

The commonality among all these laws is the list of social characteristics on whose basis discrimination is prohibited. In all cases, the list consists of "nationality," "descent," "ethnic identification," "religion," "sex," "race," "education," "beliefs," and "employment, social, political or material situation." These mimic the characteristics designated in the Constitution, and do not explicitly include sexual orientation. The only exception to this pattern is Article 76 of the Law for Radio and Television, in which the list of prohibited types of discrimination is obviously not exhaustive, because it is followed by the phrase "or any other discrimination."

Article 41 of the Law on Physical Education and Sport is special. It stipulates the responsibility of the state, specialized state organs, and sporting organizations, to take measures against all forms of discrimination. This text, however, is exceptionally contradictory. On the one hand, the phrase "all forms of discrimination" allows the possibility for discrimination based on sexual orientation to be legally prohibited. However, the text does not constitute a prohibition on all forms of discrimination in the realm of sport, but rather a general stance against social discrimination. That stance requires some kind of measures to be taken. Since these measures are not specified, the only possible conclusion is that it is the responsibility of the state, specialized state organs, and sporting organizations to pursue policies opposed to all forms of discrimination. The law does not, however, designate a responsibility for these actors to abstain from discrimination themselves. The latter makes it impossible to impose legal sanctions upon state and sport organizations that discriminate.

PROTECTION OF DIGNITY Equality among people is linked to the people's rights and dignity. People are equal in dignity.

Protection of dignity is realized in Bulgarian law through civil legislation (protection against inadmissible damages according to the Law on Responsibilities and Contracts) and according to criminal law (protection in cases of insult and slander). Some attention is due to the protection of consumers provided in the Law for the Protection of Consumers and the Commercial Law. According to Article 30, advertisers and advertising agencies are held responsible for misleading or dishonest

advertisements. Any advertisement that contains elements of discrimination based on sex, race, religion, nationality, political beliefs, age, or physical or mental ability, and any advertisement that offends human dignity, is dishonest. Any person with a legal stake in the matter may file a request to ban an advertisement, which he or she thinks is misleading or dishonest. He or she may also file for damages suffered as a result of the advertisement.

THE PROCESS OF UNIFICATION WITH THE EUROPEAN UNION AND LEGISLATION AND PRACTICES THAT DISCRIMINATE AGAINST HOMOSEXUALS The European Parliament has a clear position on the obligatory scrutiny of questions of discrimination based on sexual orientation during its negotiations with candidate states for new European Union membership. In 1998 the Parliament warned that it would not give its consent for the membership of states who, "through their legislation or policies violate the human rights of homosexual men and women." In March of 2000, the European Parliament paid special attention to the discriminatory laws of Bulgaria, Cyprus, Estonia, Hungary, Lithuania, and Romania, and requested that the "Council and Commission should raise the question of discrimination against homosexuals during negotiations for membership, whenever necessary."

The European Commission recently confirmed its opinion that discrimination on the basis of sexual orientation must be scrutinized during negotiations for membership. In March of 2001, Commissioner Verheugen indicated that "these principles [including the prohibition against discrimination based on sexual orientation] reflect not only the fundamental principles of the Union, but also the fundamental principles, which new member states are expected to accept if they wish to join the Union." He contended that, in accordance with the Copenhagen Agreement, the Commission "will scrutinize cases of violations of human rights in its periodical reports on the progress of candidate-member states and in its bilateral relations with them." 53 Footnotes: 1 This study uses Eric Heize's approach to distinguishing the areas of legislation related to sexual minorities. Heize sets out this approach in his study of sexual orientation and international human rights. See Eric Heize, Sexual Orientation: A Human Right, An Essay on International Human Rights Law, Martinus Nijhoff Publishers, р. 272. back 2 Mihail Andreev and Fani Milkova, History of the Bulgarian Feudal State and Law, Sofi-P Press, 1993. back 3 The Ekloga was written during the reign of Emperors Leo III and Constantine. It reproduces normative decisions based on Justinian legal codes. back 4 Fani Milkova, Sources of the History of the Bulgarian State During the Middle Ages, Sofia University Press "Kliment Ohridski," p.

29. back 5 Article 216 back 6 Instead of morals, Petar Kornazhev speaks successfully of "the societal feeling of shyness." See Petar Kornazhev, Sex Crimes. Sofia: Nauka I Izkustvo Press, 1974, p. 63. Alexander Stojnov points to to the immediate object of the crimes in Section 8 of Chapter 2 of the special section of the Criminal Code entitled "Depravity" and the societal attitudes that arise about the correct spiritual and physical developments of growing youngsters. See Aleksandar Stojnov, Criminal Law of the Republic of Bulgaria: Special Section, Lectures, Crimes Against the Person, Part II. Sofia University Press "St. Kliment Ohridski," p. 42. back 7 Article 149 states: "A person who performs an act for the purpose of arousing or satisfying sexual desire, without sexual intercourse, with person under 14 years of age, shall be punished for lewdness by deprivation of liberty for up to five years."

Article 150 States: "Anyone who commits acts with the goal of arousing or satisfying sexual desire without intercourse and with a person 14 years of age or older, and who commits these acts through the use of force or threat, through abuse of the victim's helplessness or by making the victim helpless, is punished with deprivation of freedom for up to five years, and in especially serious cases, with deprivation of freedom for two to eight years." back 8 See Decision № 77 of 18 February 1981 and Decision № 34 of 25 January 1997. back 9 See Stojnov (op. cit.) and the Supreme Court's Decision № 34 of 25 January 1979. back 10 See Decision № 34 (op.cit.).back 11 According to Aleksander Stojnov, the commission of acts of sexual satisfaction is not dependent on one or the other partner's reaching orgasm. See Stojnov, p. 64. back 12 Article 143 states: "Anyone who forces someone else to commit, to miss out, or to tolerate something against the latter's will, and who does so through use of force, threat, or abuse of his own power, is punished with deprivation of freedom up to six years." back

13 See the Supreme Court's Decision № 68 of 12 February 1981. back 14 Article 24 of the Criminal Code. back 15 Article 153 of the Criminal Code states: "Anyone who engages in intercourse with a member of the female sex, and who does so by forcing her into the act by abusing her official or financial dependency on him, is punished with deprivation of freedom for up to three years." back 16 Public censure is a type of punishment, which is imposed by posting a notice in the perpetrator's trade union or other social organization, at his place of employment or residence, in the press, or in another place specified by the court. The guilty party must be publicly censured for the crime that he committed. See Article 156 of the Law for Imposing Punishments.back 17 In Bulgaria there is a distinction between "juveniles" and "minors." Juveniles are persons up to age 14, and minors are those between 14 and 18 years of age. back 18 It is important to note the social conditions surrounding criminal responsibility: the perpetrator of an act must have been able to understand the meaning and nature of the crime and to have been able to control his own actions in order for those actions to be criminally punishable. back 19 An example of the Supreme Court's practice in relation to the age at which persons may give legally relevant consent for participation in homosexual acts is Decision № 464 of 14 December 1999, when the Court indicated that "Responsibility for homosexual acts is present regardless of whether force is exercised if the victim is under 16 years of age." back 20 Article 151 states: "Anyone who has sexual intercourse with a person under the age of 14 but is not punishable under Article 152 is punished with deprivation of liberty for two to five years." back 21 See Aleksandar Stojnov, op.cit., p. 49. back 22 Article 151, Paragraph 2 states: "Anyone who engages in intercourse with a person under the age of 14 who does not understand the meaning or nature of the act is punished with deprivation of freedom for up to three years." back 23 Article 157, Paragraph 4. back 24 Article 157, Paragraph 5. back 25 Petar Kornazhev's opinion (op. cit.) is that a logical and literal interpretation leads to the conclusion that the three crimes overlap.

The punishable crime should therefore logically be the homosexual act that violates social morals as a whole, and not only particular individual morals. (On this question see the Judgment of the European Court in the cases of Dudgeon § 47, and Norris §42.) back 26 Dictionary of Bulgarian Language, А-Я, Sofia: Bulgarian Academy of Science Press, 4th edition, 1993. back 27 Article 155, Paragraph 1 states: " Anyone who predisposes a person of the female sex to prostitution or who leads her towards depraved acts or towards intercourse is punished with deprivation of freedom for up to three years and a fine of 100-600 leva." back 28 Information provided by the Central Prison Administration in February 2001 in respond to an inquiry by Bulgarian Helsinki Committee. back 29 In Hungary, three complaints have been filed in the Constitutional Court against the unequal age of consent for homosexuals and heterosexuals. back 30 Robert Wintemute, Sexual Orientation and Human Rights: The United States Constitution, the European Convention and the Canadian Charter, Oxford: Clarendon Press, 2000. back 31 Decision in the case of Sutherland vs. Great Britain, 27 March 2001. back 32 Recommendation 1417 (2000) "Situation of lesbians and gays in Council of Europe member states." back 33 Resolution on equal rights for homosexuals and lesbians in the EC A3-0028/94 back 34 CCPR/C/79/Add.103. back 35 ibid. back 36 "Situation of lesbians and gays in Council of Europe member states," Doc. 8755, 6 July 2000. back 37 "Equality for Lesbians and Gay Men, A Relevant Issue in the EU Accession Process," A report by IlGA-Europe - 2001, p. 50. back 38 Decision of 1е from 7/1992/352/426. back 39 Decision of 7 December 1976, А 24, § 49. back 40 Resolution on equal rights for homosexuals and lesbians in the EC A3-0028/94. back 41 Information from clients of Bulgarian Helsinki Committee. back 42 In some countries, the police keep records on people with "different" sexual orientation, even when these people are not suspected of committing crimes. The use of information about the homosexuality of certain people was common in the work of the former Secret

Service, which blackmailed these people into bearing witness and providing information. Keeping such registers cannot be explained according to any practical necessities of the war against organized crime. Such registers are an expression of homophobic attitudes. The Committee on Social and Health Questions of the Parliamentary Assembly of the Council of Europe recommends the ceasing of such practices. See "Recommendation of the Committee on Social and Health Questions of the Parliamentary Assembly of the Council of Europe," Document 4755. back 43 Recommendation 1417 (2000) "Situation of Lesbians and Gays in Council of Europe Member States." back 44 With Recommendation 1474 (2000), the Parliamentary Assembly of the Council of Europe broadened the powers of the European Commission Against Racism and Intolerance to respond to homophobia, and it added to the European Commissioner's staff a special assistant for questions of discrimination based on sexual orientation. back 45 Resolution on equal rights for homosexuals and lesbians in the European Community, OJ 1994 C 61/40, Res. No A3-0028/94, 8 Feb. 1994. back 46 Before now, such complete investigations have been conducted in Ireland, Sweden, Great Britain, and Italy. back 47 In Bulgaria the only legally valid marriage is one sanctioned by the state in the person of the so-called "Responsible Person for the Civic Condition." In other states, registered religious communities are entrusted, either exclusively or together with the state, with the relations related to marriage. back 48 See Decree â„– 5 of 24 October 1969, Plenum of the Supreme Court. back 49 See Article 36 of the Law on Local Tributes and Taxes. back 50 See Article 28 of the Law on Inheritance. back 51 See Articles 50 and 51 of the Family Code. back 52 See Pencho Penev, Constitutional Law, Ciela Press, 1997, p. 184. It is worth noting that until now the Constitutional Court has changed its practice only twice. back 53 Answer given by Mr. Verheugen on behalf of the Commission (12 March 2001) to the written question 4142/00 by Lousewies van der Laan (ELDR).