Right to liberty and security of person
No changes in the legal framework regulating the right to liberty and security in the penal process were made in 2009. The arrest provisions of the 2006 Code of Criminal Procedure (CCP), which basically repeat the provisions introduced by the 1999 amendment of the old code, remained in effect. These allow the courts that impose such a measure to rely too much on the weight of the prosecution and to neglect the judgment of how reasonable is the suspicion that has resulted in arrest and whether the goal that is to be achieved by the detention is legitimate. The legal framework allows also for an excessive duration of the preliminary detention when an indictment has been served and the case was transferred to court. [1]
In its review of the implementation of the judgments on Bochev v. Bulgaria (2008), Evgeni Ivanov v. Bulgaria (2008) and Kirilov v. Bulgaria (2008), the Committee of Ministers of the Council of Europe focused its attention on the deficiencies of the legal framework and of the law enforcement related to the application of the arrest measure. With regard to these cases, the Committee of Ministers required the provision of information on the measures that the Bulgarian authorities intend to undertake, in order to bring the national legislation and law enforcement in compliance with ECHR case law. The review of the implementation of the individual and the general measures arising from these judgments continued throughout 2009 and was not completed.
Placement in social care homes of people with mental disabilities continued to be a severe problem. Such placement occurs under an administrative procedure, without control by the court and, as noted by the BHC monitoring on multiple occasions, is often arbitrary.[2] The legislation governing placement remained unchanged during the year.
In November, the ECtHR held a public meeting on the cases Stanev v. Bulgaria and Mitev v. Bulgaria, which concern the placement of people with mental disabilities in social homes. These cases are supported by BHC together with the Mental Disability Advocacy Center (MDAC). The ECtHR decision is expected in 2010.
The placements under the Juvenile Delinquency Act continued to occur in violation of the international standards regulating the right to liberty and security of person. Many of the placements during the year were arbitrary, due to the inadequate access to legal assistance and the inequality between the parties involved in the procedure. In violation of the international standards, the placement in homes for temporary (up to two months) placement of minors and juveniles continued to occur as an administrative procedure, without control from the courts. The placement in “crisis centres” for children victims of trafficking also occurred in violation of the international standards regulating the right to liberty and security of person.[3]
In May, parliament adopted amendments to the Foreigners in the Republic of Bulgaria Act, some of which regulate involuntary placement in a special home for temporary accommodation of foreigners pending their extradition from the country. According to the amendments of Article 46a, involuntary placement orders may be appealed in the administrative courts within three days of the date of placement. The court reviews them at an open meeting and adopts a decision within one month of the date the case was filed. However, the appearance of the person in court is not mandatory. Every six months the administrative court decides whether to extend, replace or terminate the placement. Although the new provisions do not impose compulsory judicial control, but regulate it only as a possibility, they are a significant improvement of the old regime of appealing the forced placement orders, which allowed for extended periods of administrative detention without judicial control. Still, they are inconsistent with the provisions of international law that guarantee the liberty and security of person, as they do not require the detained individual to appear in court in person and the deadline for the court’s decision is too long.
In 2009, the ECtHR held violations of Article 5 of the European Convention on Human Rights in several cases against Bulgaria. Some of these concern excessive duration of detention during pre-trial proceedings on penal cases (Titovi v. Bulgaria, Rangelov v. Bulgaria, Stoyan Dimitrov v. Bulgaria, Koriyski v. Bulgaria, Ozver v. Bulgaria). In some of its judgments the court held also a violation of the right to judicial review of the lawfulness of detention, due to the overly formalistic approach of the Bulgarian courts in judging the grounds for such review.
[1] For the deficiencies of this legal framework, see: ECtHR, Bochev v. Bulgaria, Appl. No. 73481/01, Judgment of 13 November 2008; CEDH, Evgeni Ivanov c. Bulgarie, Requête no 44009/02, Arrêt du 22 mai 2008.
[2] See BHC, Human Rights in Bulgaria in 2006, Annual Report of the Bulgarian Helsinki Committee, March, 2007; See BHC, Human Rights in Bulgaria in 2007, Annual Report of the Bulgarian Helsinki Committee, March, 2008; See BHC, Human Rights in Bulgaria in 2008, Annual Report of the Bulgarian Helsinki Committee, March, 2009. Available at: http://www.bghelsinki.org.
[3] See Conditions in places of detention.
