Editors:  The Editorial Board  Jo-Anne Wemmers, Managing Editor  j.m.wemmers@wodc.minjust.nl  Gerd Ferdinand Kirchhoff  mail to: Gerd Ferdinand Kirchhoff Rika Snyman  snyman@tsamail.trsa.ac.za  Elmar Weitekamp   elmarweitekamp@uni-tuebingen.de   

Vol. 3 #2  

The Implementation of the UN Declaration of Basic Principles of Justice  on Victims of Crime and Abuse of Power in Bulgaria
Dr. Dobrinka Chankova   

For many years it was claimed that the Bulgarian legislators provided adequate protection of the victim and this is a traditional achievement of Bulgarian legislation. However, in Bulgaria we had totally forgotten the victim for a long time. Despite the democratic changes after 1989, legislators paid more attention to the offender than to the victim.    While some basic protection for the victim of crime has traditionally been provided, we have not achieved the full implementation of the UN Declaration of Basic Principles of Justice on Victims of Crime and Abuse of Power. Many of the recommendations of the UN Declaration of Basic Principles of Justice on Victims of Crime and Abuse of Power were and still are “too luxurious requirements”, according to our domestic policy-makers, and therefore not applicable to the Bulgarian reality. Nevertheless some positive developments can be pointed out.    In the following a brief description of the traditional position of victims of crime in Bulgaria will be given. Next, recent changes in the legal status of victims of crime are presented. The article closes with a brief discussion of some of the remaining shortcomings of the system.   

Traditional provisions for victims of crime

Who is a victim?   The basic quality of the victim is that he/she is a participant in the social relations directly affected by the crime. A victim can be a natural person, a legal person or the state. Collective bodies cannot be victims because of the lack of legal personality. In this situation there will be numerous individual victims.  Only the subject, whose rights explicitly indicated in the corpus delicti are threatened or harmed, can be a victim. It is not necessary for the victim to sustain real damages in order to be considered a victim. He /she is an object of protection even in cases of attempt as well as in cases of preparation to the crime.   In numerous codifications the legislator has specified that certain qualities and states of the victim can lead to a more severe penalty. For example some personal qualities such as age (very young or very old), some social qualities such as nationality, religion, race as well as some special states as illness, unconsciousness, helplessness.     Private prosecution  According to the Bulgarian Criminal Procedure Code the victim is entitled to participate in the trial as a witness, a private accuser, a private complainant and plaintiff. He/she defends his/her rights personally or with the help of an attorney.   The person, who has sustained material or immaterial damages by the crime that is being prosecuted by the public prosecutor, has the right to take part in the trial as a private accuser. After his death this right passes on to his legal heirs.   The person who has suffered from the crime that is prosecuted on the ground of a complaint by the victim could raise and uphold an accusation as a private complainant.   In order to provide better protection of the victim the law permits a civil claim to be lodged both against the accused and against other persons who carry civil liability for the damages caused by the crime. Because of the low rate of detection of crime and of sentenced persons a significant part of the victims cannot avail themselves of their rights in accordance with the relevant procedure. The extremely long, torturous trial even causes a secondary victimization.    Dignity and respect  We have to admit that the only special provision somehow related to treatment of the victims with compassion and respect for their dignity is Art. 99 of the Criminal Procedure Code. According to this provision, minors shall be interrogated as witnesses in the presence of pedagogue or psychologist, and where necessary, also in the presence of the parent or guardian. Underage witnesses shall be interrogated in the presence of the above-mentioned persons, if the respective body finds this necessary. With permission of the body conducting the interrogation, these specialists may put questions to the witness.       Recent Developments  During the last decades all over the world the policy-makers, criminal justice practitioners and criminologists have become more and more concerned with the victim’s position in the criminal justice process and with protecting the victim’s interests. In recent years this favourable climate expanded to the former socialist countries, including Bulgaria. Trying to follow this tendency Bulgarian legislators, executive, judiciary and scientists have concentrated their efforts to protect the rights of the victims (real and potential).     The trial  The criminal procedure has been changed recently. The three-instance court system has been adopted. It is highly controversial whether this long procedure is the best way for securing the victim rights. However, some positive steps have been taken, speeding up and optimizing the preliminary proceeding and admitting evidence gathered by special intelligence.  The latter must, however, be in accordance with the basic principles of democratic state, the rule of law and human rights. In this way the possibilities to establish the perpetrator increase and the interest of the victim could indeed be better protected.    Witness protection  Protection of the witnesses during the criminal proceedings has recently been introduced. According to Art. 97a of the Criminal Procedure Code, “the bodies of the preliminary proceedings or the reporting judge shall, upon request or with the consent of the witness, take measures for his/her protection, should there be sufficient grounds to presume that due to the testimony there has arisen or may arise real danger to the life, health or the property of the witness, his relatives of ascending or descending line, brothers, sisters or spouse”. The protection shall be provided by means of keeping his/her identity secret (so called anonymous witness) and providing guards. The legislator considers that the witness will be motivated to testify when he/she does not risk becoming the next victim. The next step for the government is to provide funding and elaboration of the programs for the protection of the witnesses and persons having collaborated with the judiciary.     Victim assistance  A new Ministry of Interior Act entered into force at the beginning of 1998. This Act provides for the establishment of the Constabulary, a unit that is new to the Bulgarian system. The Constabulary operates within the framework of the Ministry of Interior. The assisting of crime victims as well as the citizens in risky situations, safeguarding the public order, detection and elimination of crime determinants (reasons and conditions for committing crime) are among the priorities of this unit.    At present, some NGOs are very active in victim assistance. They successfully compensate the delay or the lack of governmental actions. Worthy of mentioning is the ANIMUS Association, a NGO for the protection of women. The activities of ANIMUS include women as victims of crimes such as domestic violence and sexual harassment. A telephone hotline has been opened and now every crime victim can express her psychological problems and receive specialised help and advice. Together with the local government of Sofia, ANIMUS plans to soon open a centre for the rehabilitation of women-victims of violence.     Another NGO is the Assistance Centre for Torture Survivors (ACET). It has been working actively since the beginning of 1997. The medical specialists provide psychological, psychiatric and other qualified support to the victims of torture (refugees, prisoners, etc.) and their families.    Informal mechanisms  A particularly important part of the activities of some governmental bodies and NGOs is devoted to the elaboration and experimentation of a model of mediation as an alternative to the traditional justice system. Mediation strengthens the role of the victim and satisfies the victims’ needs, both material and emotional. Within the restorative justice model he/she will be treated with real compassion and respect for his/her dignity. Undoubtedly, access to justice and fair treatment are essential victim’s rights but they are not enough. The 21st century needs something more - faster, more efficient, less expensive procedures. Relevant responses are mediation, reconciliation, arbitration, reparation negotiation programs, family and community group conferences etc. Guided by the principle that the restoration and restitution is of significant importance, in Bulgaria we have started discussions and pilot projects on mediation as an alternative to the trial. Presently, these efforts have been met with resistance - mainly from the judicial society, which strongly defends its interests, but we are optimists.    Crime prevention  Some progress in the crime prevention and victim related policies has already been achieved. An important element of the state policy is the protection of citizens from victimization. Victimological research identifies certain groups of people with a higher risk of becoming victims of crimes (women, children, disabled persons) and the typical mistakes in their behaviour. Using this information, comprehensive recommendations can be developed for potential victims, thereby reducing the likelihood of victimization. Mass media play an important role in pursuing the policy of protection of the citizens from victimization. They have launched various information campaigns on how to avoid violent crimes and financial fraud. A very good example is the campaign related to the recent Bulgarian currency denomination .  Mass media pay special attention to the children as well. There are specialized educational TV broadcasts on avoiding children victimization. More than ten NGOs have developed projects designed to prevent street children and children in especially difficult circumstances from becoming crime victims.    In the National Strategy for Combating Organized Crime, the fight against organized crime and corruption was declared a first priority of the Government. New crimes have been penalized and more severe sanctions have been introduced in our Penal Code. It is difficult to say that this is the best way to protect society, but this is a relevant remedy for prevention.    Education  Nowadays we are paying more attention to the problems of victims in the educational process. The respect of human rights as well as the victim rights is not an inherent instinct of the personality and has to be shaped under the influence of the outside reality. We consider that this education has to begin in the primary schools or even earlier and should continue throughout the child's education, while turning into a life-long education of the adult person. I am happy to say that the range of people involved in this education is expanding. Presently, not only pupils and students are involved, but also police and prison staff, journalists, barristers, magistrates, members of the armed forces, medical practitioners, social workers, civil servants. Special programs and courses have been developed and a lot of training workshops, colloquia, conferences, etc., have taken place.    Shortcomings  Of course, the Bulgarian victim-relating policy has many shortcomings. Although the idea of victim compensation through public funds is not alien to the existing legislation, it is not fully realized. The State Liability Act for Damages Caused to Citizens of 1988 provides for special compensation of persons who are victims of illegal actions by the state authorities, including judicial authorities, but it is only a partial decision. Based on economic difficulties, the Government of Bulgaria has not implemented the relevant part of the UN Declaration and has not yet signed the Council of Europe Convention on the Compensation of the Victims of Violent Crimes. The economic difficulties are a good excuse, but it is high time something more was done for the crime victims. When the state is not in a position to guarantee the security of its citizen (Art.5 of the European Convention of Human Rights) and they become crime victims, the state should compensate them. And this will be an additional stimulus to be more efficient in prosecuting the offenders.   The Government of the Republic of Bulgaria has always declared that the protection of the interests of the victims of crime is one of the fundamental functions of criminal justice and it is doing its best to implement the measures, contained in the United Nations and the Council of Europe instruments on assistance to victims and the prevention of the victimization.  It is high time that more concrete measures are undertaken.      Book Reviews  The International Review of Victimology is looking for people willing to write book reviews for the journal. The books reviewed in the journal cover a number of different topics, all relevant to victimology.  For a list of books available and the guidelines for reviewers please contact Dr. Brian Williams, Department of Social and Community Studies, De Montfort University, Scraptoft, Leicester LE7 9SU, Great Britain. E-mail: bwilliam@dmu.ac.uk