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Who Cares if the State Criminal Repression Stanimir PETROV The situation of foreign citizens serving sentences in Bulgarian prisons is strikingly reminiscent of the characteristically Bulgarian saying, “I don’t want things to be good for me, I want them to be bad for Vute”. This might have been the premise of the Bulgarian legislative genius, who has assigned the criminal penalties for foreign citizens who have committed crimes associated with transporting narcotic substances across borders (Art. 242, Para. 2,4 of the Criminal Code). Carried away in their self-satisfaction, the Bulgarian lawmakers did not take into account the fact that they were exerting the full severity of the law to punish crimes that take place outside the territory of this country; at the same time, they instituted the possibility of settlement and thus, of minimal criminal liability for the drug dealers, who are destroying the lives of thousands of young people (Art. 354a). In April 2005, 37 foreign citizens serving sentences in the Sofia jail went on a hunger strike. They did so in protest against the inequality of their treatment with that of the Bulgarian prisoners, with regard to opportunities for conditional early release, suspension of their sentences, leave passes, annual breaks, and transfer to prison hostels of open and transitional type, as well as the slow nature of the procedure for transferring them to their home countries. At that time, it emerged that the chief obstacle to the conditional early release or transfer of foreign prisoners was the sizable fines imposed on them along with their jail sentences. In early September 2006, once it became clear that nobody had done anything to improve the foreign prisoners’ legal standing, they resumed their protest. The prison officials denied that the foreigners had announced a hunger strike, but they did not deny that there was tension among them. Later, it was announced that there was in fact a hunger strike, but that there were only a few prisoners fasting. Following a meeting with the justice minister, at which the striking prisoners were assured that their cases would be reviewed by the competent authorities, the foreigners ended their hunger strike. The table illustrates the change in the repressiveness of punishments in recent years, in accordance with the provisions of the Criminal Code pertaining to the sentencing of foreign citizens. Analysis of the situation in the Sofia Central 24 OBEKTIV

Prison shows that 74 out of a total of 87 foreign nationals serving sentences for narcotics-related crimes, were sentenced under the unchanged Art. 242, (2), (4) of the Criminal Code, and some of them have been fined amounts exceeding 200,000 levs. Failure to pay these fines is the main reason why foreign prisoners serve their sentences “on the scale”; i.e. they are held in jail until the end of their sentences, at the expense of the Bulgarian taxpayer, and are not transferred to their own countries. As the table indicates, the latest amendments to the Criminal Code only reduced the penalties under Art. 354à. They did not, however, affect Art. 242 of the Code; this means that there is still no legal means for increased lenience towards foreign inmates in Bulgarian jails. Thus, the legislative logic of the latest amendments to the Criminal Code remains elusive, since the punishments for crimes committed within the country’s borders (Art. 354à of the Criminal Code) were reduced quite significantly, while the penalties for crimes covered under Art. 242 remained unchanged. This fact essentially obviated the very point of the justice minister’s assurance that he would review the situation of foreign prisoners. The second reason for the protest of foreign inmates in Bulgarian jails was connected with the legal provision allowing for transfer to facilities with less restrictive conditions, prison hostels of open or transitional type. The lawmakers stipulated that foreign prisoners must serve their sentences in prison hostels designated by a ministerial order (Art. 12c of the Execution of Punishments Act). Such an order of the Minister of Justice, and indeed such dormitory facilities, do not exist yet, which fully justifies the foreigners’ claim that they are not afforded equal treatment with Bulgarian citizens under the law. The third reason for the foreign prisoners’ protest action had to do with the legal possibility for interrupting their sentences, taking leave passes and annual vacations. As in the matter of transfers to prison hostels, Bulgarian legislation does not contain any exclusionary provisions. Despite this, however, foreign inmates cannot take advantage of leave passes or annual vacations, because they do not have permanent residence in the country and are not listed in the address register. At the beginning of 2006, complaints were filed with the Anti-Discrimination Commission on behalf of foreign nationals serving sentences in Bulgaria,

is Losing in its Absurd of Foreign Citizens? Offences under:

SG Iss. 62 of 1997

SG Iss. 21 of 2000

SG Iss. 75 2006

Criminal Code, Art.

Whosoever prepares, acquires, possesses, transports, or

...produces, reprocesses, acquires, distributes, keeps,

...produces, reprocesses, acquires, or possesses...Penalty: 2-8 years imprisonment


carries narcotic substances intended for sale... Penalty: 2-10 years impris-

possesses, transports, or carries... Penalty: 10-15 years impris-

and a fine of 5,000 to 20,000 levs.

onment and a fine of 1,000 to 20,000 levs.

onment and a fine of 100,000 to 200,000 levs. ...violates the rules governing the production, acquisition, preservation, accounting, allocation, transportation, or carrying [of]...Penalty: up to 5 years imprisonment and a fine of up to 5,000 levs.

Criminal Code, Art. 242 (2)

Criminal Code, Art. 242 (3), (4)

...carries narcotic sub-

...carries narcotic sub-

stances... across the country’s border... Penalty: up to 8 years im-

stances and/or analogs thereof... across the country’s border... Penalty: 10-15 years

prisonment and a fine of 1,000 to 5,000 levs.

imprisonment and a fine of 100,000 to 200,000 levs.

Para. (3) ...if the contraband substance is of an extremely large amount...

Para. (4) ...if the contraband substance is of an extremely large amount...

Penalty: 5-15 years imprisonment and a fine of 5,000 to 20,000 levs.

Penalty: 15-20 years imprisonment and a fine of 200,000 to 300,000 levs.

who claimed to have been discriminated against on the basis of their citizenship. The claimants’ specific complaints were that foreign citizens are unable to take advantage of leave passes for good behavior, nor of the right to be transferred to a less restrictive prison facility. In an effort to reach the fairest possible decision, on cases No. 009 and 011 of 12 April 2006, the Anti-Discrimination Commission found that discrimination did exist, and recommended that the justice minister bring the ministerial order designating the distribution of different categories of prisoners among different prison facilities in line with Art. 12 of the EPA. Bulgarian legislators obviously overlooked that recommendation, since in their new Guidelines for the Enforcement of the EPA (State Gazette, Iss. 71 of 2006) the provision according to which foreign citizens “...shall be

No Change.

No Change.

placed in isolation from other prisoners with regard to their place of residence and employment” remained unchanged. Along with its recommendation, the Anti-Discrimination Commission, whether intentionally or not, also issued some clearly discriminatory instructions, according to which “...measures should be taken to establish a guarded facility outside the prison, where foreign national prisoners may spend the leave passes earned for good behavior.” Perhaps the commissioners, who think they know a thing or two about discrimination, should stop and think about whether leave passes that foreign prisoners have to spend in a special facility under guard are not discriminatory, compared with those received by Bulgarian citizens, who may spend their leave free, without guard supervision.„ OBEKTIV 25

Who Cares if the State is Losing in its Absurd Criminal Repression of Foreign Citizens?