Bulgaria: New Penal Code is dangerous

The draft of the new Penal Code, proposed by Minister Zlatanova on 21.12.2013, and adopted by the Council of Ministers on 15.01.2014, is an unpleasant surprise for the Bulgarian Helsinki Committee. The BHC, as well as other NGOs, academia, the judiciary and many state institutions, who were included in a special working group at the Ministry of Justice in 2012, have invested serious efforts to improve the original draft and to ensure it meets international law and current best practices in the field of criminal law. The project was assessed by several respected international experts and the final version was expected to be consistent with their numerous recommendations.

We note with concern that most of the efforts of this working group, whose work was interrupted two months ago, as well as the contributions of the international experts are ignored. Obviously Minister Zlatanova is determined to keep the promise to present a complete draft in December 2013 and to submit it to the National Assembly, regardless of its quality. Furthermore, in the proposed draft, published on the website of the Ministry of Justice, a number of changes to the original draft are not included, on which the working group had reached a consensus.

As a result, the proposed draft, far from being consistent, as Minister Zlatanova claims, "with all the requirements of international treaties and conventions to which Bulgaria is a party," in many aspects is in direct contradiction with them, with the recommendations of international bodies and with guidance on measures resulting from judgments against Bulgaria by the European Court of Human Rights. A number of key directions of international experts are not addressed either. Here are just a few of the recommendations, on which the working group reached a consensus, and which are not reflected in the final bill:

• In the general part, a list is missing, albeit just to serve as an example, of the aggravating circumstances, among which was to be the committing of the offense on discriminatory motives;
• In art. 84, para. 2 war crimes, which also have not been fully transposed from the international instruments, are not included among the crimes that do not expire by prescription;
• The wording of the composition of torture in art. 589 is inadequate, inappropriate and in contradiction to international law;
• The framework of crimes against "sexual inviolability and sexual morality" adopted in Ch. 15 is abiding by outdated norms and approaches, by an inadequate conceptual system, it is against the recommendations of international experts and it diverges dramatically from the working group's consensus that the final version will present and elaborate an alternative framework.
• Many of the provisions in Chapters 34 (war crimes) and 36 (crimes against peace and humanity) differ dramatically from international standards and are in conflict with the decisions of the Constitutional Court;
• The new content on photographing, filming and recording in art. 146 contradicts international standards for freedom of expression and had to be edited;
• The same applies to the content of art. 188 and Art. 305, para. 3.The proposed art. 305, para. 3 reads: “... any Bulgarian citizen who places herself at the service of another country or a foreign organisation or organisation under foreign control, in order to serve to the detriment of the Republic, shall be punished with imprisonment from 2 to 8 years."

According to the chairman of the Bulgarian Helsinki Committee, Krassimir Kanev, art. 305 is dangerous. "This text provides severe penalties on an arbitrary basis, because it is abundant with vague or conflicting concepts. The draft of the new Penal Code does not define any of the terms, on which one could go to prison for eight years, it does not say what constitutes a "foreign organisation" nor what "under foreign control" means. It is not clear what is meant by the term "serve" nor is it specified what exactly is considered to be "to the detriment of the Republic.””

It is true that, as stated in the announcement of the Ministry of Justice, the draft "reproduces a considerable number of provisions already existing under the current Penal Code of 1968 which are classic criminal law and Bulgarian tradition." Among them, however, are also those provisions and legal principles that are part of an old tradition with which the new Penal Code of democratic Bulgaria was expected to break. The proposed text has achieved this to some extent, but unfortunately the work yet to be done is still considerably serious. The above issues are only a fraction of those in the draft. Many more issues have been raised by international experts.

Unfortunately and despite the voiced criticism by many legal practitioners and other stakeholders, the draft of the new Penal Code was indeed submitted to the National Assembly by the Minister of Justice and adopted by the Council of Ministers in its current flawed and problematic state.