Procedure for Placement in EBS abd SEBS and the Rights to Liberty and to Fair Trial

Procedure for Placement in EBS abd SEBS and the Rights to Liberty and to Fair Trial June 2001

Procedure for Placement in Correctional Boarding Schools and Social Educational Boarding Schools and the Rights to Liberty and to Fair Trial Discrepancies between the Juvenile Delinquency Act and international human rights standards Author: Boyko Boev The present report is an except from the book "Correctional Boarding Schools and Social Educational Boarding Schools in Bulgaria", published in 2001 with the support of the MATRA Programme of the Dutch Ministry of Foreign Affairs. The book is available in Bulgarian from the BHC. Contents: Introduction Organisation of Correctional Boarding Schools and Social Educational Boarding schools Contradictions of the organisation of placement in CBS and SBS with the Child Protection Act Contradictions with international human rights standards Introduction

The object of the present paper is to describe the legal framework for placement in Correctional Boarding Schools and Social Educational Boarding Schools and the discrepancies between the Juvenile Delinquency Act (promulgated Izvestiya, No. 13 of 14.02.1958, hereinafter JDA) and international human rights standards and, in particular, with the right to liberty and the right to fair trial.

The paper consists of three parts. The first part describes the procedure for placement in Correctional Boarding Schools (hereinafter CBS) and Social Educational Boarding Schools (hereinafter SBS). The second part cites the contradictions of the legal framework with the Child Protection Act (promulgatedState Gazette No. 48 of 13.06.2000, hereinafter CPA). The third part is an analysis of the contradictions of the procedure for placement in CBS and SBS with the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ECPHR).

I. Organisation of Correctional Boarding Schools and Social Educational Boarding schools

1. Legal framework The organisation of the two types of schools is contained in the Juvenile Delinquency Act, as well as in the Correctional Boarding Schools Regulations and the Social Educational Boarding Schools Regulations. Both regulations have been issued by the Minister of Education and Science and have been promulgated in State Gazette No. 73 of 17.08.1999.

2. Placement procedure 2.1. Placement in Correctional Boarding Schools

2.1.1. Subjects Children aged 8 to 14 and adolescents aged 14 to 18 may be placed in CBS. The Local Commissions for Combating Juvenile Delinquency, the Prosecutor's Office and the courts are empowered to do so.

2.1.2. Procedure for placement by: a) The Local Commission for Combating Juvenile Delinquency The JDA requires the measure of placement in CBS to be applied only as a last resort. In order to apply this measure the Local Commissions for Combating Juvenile Delinquency must have ascertained that any other correctional measures cited in the JDA have proven inadequate and that the child lacks a suitable social environment for its normal education.

The presence of the child and its parents (or foster parents) is mandatory when the local commission conducts hearings to investigate misdemeanours. A public defender is designated to defend the child.

However, no legal counsel is allowed at the hearing. After having taken a decision for placement in a reform school, the local commission sends the case file through official channels to the district judge.

The judge examines it in a session in camera. He/she is not obliged to meet with either the juvenile or his/her parents, unless they expressly request this. The judge examines whether the commission has observed the provisions of the law regarding the issue of the decision and judges its lawfulness. The decision is not subject to appeal. b) The Prosecutor's Office With respect to a minor who has committed a crime due to impetuousness or thoughtlessness, which does not constitute great social danger, the prosecutor may decide to terminate already instituted preliminary proceedings and to order placement in a correctional boarding school. The prosecutor may terminate the proceedings only if he/she considers that the measure of placement in a correctional boarding school can successfully be applied with regard to him/her. c) The Court With respect to a minor who has committed a crime due to impetuousness or thoughtlessness, which does not constitute great social danger, the court may decide not to have him/her brought to court or not to have him/her tried, provided it finds that the measure of placement in a correctional boarding school can successfully be applied with regard to him.

In cases where the punishment as determined is deprivation of liberty for less than one year and its serving has not been suspended, the underage convict shall be exempted from serving it and the court is obliged to confine him/her to a correctional boarding school or to impose on him/her another correctional measure, provided by the JDA1.

2.2. Placement in Social Educational Boarding Schools 2.2.1. Subjects Children above the age of seven and adolescents deprived of an appropriate family environment or parental care and supervision who have committed anti-social acts or if conditions exist for them to commit anti-social acts are placed in SBS. Article 6 of the Social Educational Boarding Schools Regulations states that conditions for committing anti-social acts exist if the pupils have parents whose criminal acts have had a harmful effect on them and constitute a risk factor for their development or if the pupils exhibit deviant behaviour, are victims of criminal assault, or have been ill-treated in the family or by other persons. Juveniles with mentally ill parents, whose behaviour and way of life have induced their deviant behaviour, and juveniles whose parents abuse alcohol, psychotropic and narcotic substances, causing a harmful effect and inducing their deviant behaviour are cited as deprived of suitable living conditions and parental care and supervision. The admission of pupils to SBS for purely social reasons, linked with financial difficulties in the family, as well as the admission of pupils with severe chronic diseases, severe mental and behavioural disorders (schizophrenia, frequent epileptic fits), counterindicative of placement in SBS, is not permitted.

The placement of pupils in SBS is carried out at the decision of the Local Commissions for Combating Juvenile Delinquency, the district courts and the district prosecutor's offices. Parents and competent authorities may also request placement in SBS. 2.2.2. Placement procedure On the whole, the procedure before the local commission for placement in SBS does not differ from that for placement in CBS. The only difference is that the case file is not sent through official channels to a different body for consideration. If the public defender, the juvenile or the juvenile's parents (or foster parents) decide to appeal the decision of the local commission, they may do so before the mayor. The mayor examines the case file and rules within seven days after the receipt of the petition.

If he/she finds that the decision is unlawful or contradicts the evidence, he/she repeals it and refers the case file for a second hearing by another panel of the commission. The decision of the second panel of the commission is final.

2.3. Placement term The maximum stay in CBS or SBS may not exceed three years. The stay may be extended only at the request of the juvenile and at the decision of the Pedagogical Board for the purpose of completing the respective educational level.

3. Characteristics of placement in CBS and SBS Article 13 of the JDA cites CBS and SBS as one of the envisaged correctional measures. These are measures that are definitely punitive in nature. They are applied in cases when a juvenile is guilty of a misdemeanour and represent a state reaction against the misdemeanour. There is one exception.

Admittance to SBS is also envisaged with regard to children deprived of an appropriate family environment or parental care and supervision and in whose case conditions exist for committing antisocial acts. Only in this case can it be claimed that the measure under article 13 is preventive rather than punitive.

On the other hand, placement in CBS and SBS is envisaged as an educational measure. Although the JDA does not explicitly formulate the purpose of the correctional measures under Article 13, the confinement to special institutions is undoubtedly an activity aimed at preventing and combating antisocial acts and for ensuring the normal development and education of juvenile delinquents within the meaning of Article 1. The educational nature of the measures of placement include the creation of conditions for completing secondary education and vocational training, as well as the conduct of individual and collective social preventive and correctional educational activity for overcoming the influence of risk factors in the development of pupils2.

II. Contradictions of the organisation of placement in CBS and SBS with the Child Protection Act

1. Requirement for ruling of the court on the measure of placement The Child Protection Act adopted in 2000 aims to regulate the rights, principles and measures for the protection of the child. As a measure of this protection the act specifies in Article 26 that the placement of a child in a special institution shall be carried out by the court3. The JDA stipulates this requirement only with regard to placement in CBS, as a measure taken by the local commission and court. The court has no competence with regard to the prosecutor's power to decree placement in these specialised institutions.

The contradiction of the JDA with the requirement for a court ruling on the measure of placement, provided in the CPA, is obvious with regard to placement in SBS. The JDA does not require a ruling by the court to impose this correctional measure.

2. Right to legal assistance Article 15, paragraph 3 of the CPA regulates the right of the child to legal assistance in all proceedings affecting its rights or interests. The right to legal assistance is not guaranteed in the proceedings for the imposition of correctional measures, including placement in CBS and SBS. Article 19, item 4 of the JDA explicitly states that no legal counsel shall be allowed before Local Commissions 4.

III. Contradictions with international human rights standards

The placement in Correctional Boarding Schools and Social Educational Boarding Schools is in contravention of Article 5 and Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

1. Violation of Article 5 1.1. Application of Article 5 of the European Convention, guaranteeing the right to liberty5 The European Court has found that the starting point for determining whether there is deprivation of liberty, is the concrete situation of the affected person. In addition, the following circumstances have to be taken into account - the type, duration, consequences and manner of performance of the respective measure6. In the case of Nielsen, concerning the hospitalisation of a child, the Court holds that the deprivation of liberty is basically expressed in the loss of personal control and contact with the outside world and, for a longer period, removal of the borderlines between work, play and home 7.

The analysis of the peculiarities of CBS and SBS leads to the conclusion that the juveniles confined therein are de facto deprived of liberty, from the starting point of the European Court. Both CBS and SBS are institutions of a closed type. No outside persons are allowed in without permission 8. Pupils do not have the right to go outside the region of the school without permission. When attending a cultural event outside the region of the school, they must mandatorily be accompanied by a teacher or educator9.

Home or town leave is defined as a special reward10. The children are separated from their families and friends. Contact with the outside world is maintained mainly through correspondence, which is controlled and read by the school authorities11.

1.2. The deprivation of liberty does not conform to the requirement of Article 5, paragraph 1, item d that the detention of minors should be carried out by a "lawful order" and "for the purpose of educational supervision". a) Failure to observe the requirement of "lawful order" in placement in CBS and SBS under JDA procedure In accordance with JDA procedure, the local commissions take a decision for placement in CBS or SBS. These decisions do not conform to the requirement of lawfulness, established in Article 5, paragraph 1, item d and the practice of the European Court.

In the interpretation of the word "law", which also refers to the concept of "lawful", the Court in Strasbourg formulated the following principles: the word "law" must include both the written and the unwritten law; the law has to be accessible and, finally, it has to be foreseeable 12. With regard to the accessibility of the law in the case of Silver, the Court held that "the citizen must be able to have an indication that is adequate, in the circumstances, of the legal rules applicable to a given case"13. In the same case the Court defined the requirement that the law should be foreseeable, according to which the ""a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail" 14.

The JDA does not conform to the requirement of accessibility and predictability, in accordance with the practice of the European Court. The act does not provide an exact formulation of the content of the concept of "anti-social act". This term is absent from the Penal Code15 and the other laws, with the exception of the Compulsory Social Insurance Code, which does not provide a definition of the content of this concept either. On the other hand, the JDA also uses the term "acts dangerous to society".

Thus for example, in describing the powers of the local commissions it states that the local commissions "shall consider the misdemeanours of children aged 8 to 14 who have committed "acts dangerous to society"16. Similarly, Article 20 states that the local commission should dismiss the proceedings, "if no act dangerous to society has been committed or if the juvenile has not committed the act".

The use of different terms, without defining their content, gives a wide scope of discretion to members of the local commissions. This is particularly dangerous since the latter can undertake actions leading to deprivation of liberty within the meaning of Article 5 of the European Convention. The Bulgarian Helsinki Committee has come across cases when children are placed in CBS for acts which are not prosecuted by law as crimes and cannot be regarded as anti-social, such as running away from school or home, or prostitution. These cases show that the local commissions put a different interpretation on the concepts of "acts dangerous to society" and "anti-social acts", which lead to the violation of human rights. The risk of the latter is particularly great due to the fact that there are no binding interpretations of the two concepts, guaranteeing the equal application of the law by the local commissions. b) Failure to observe the requirement of deprivation of liberty "for the purpose of educational supervision" Undoubtedly, the placement of juveniles in CBS and SBS falls within the hypothesis of Article 5, paragraph 1, item d. This provision cites the detention of a minor for the purpose of educational supervision as lawful grounds for restricting the right to liberty.

The extensive powers provided by Article 5, paragraph 1, item d have forced the Court to demand strict guarantees that deprivation of liberty is indeed imposed for educational purposes. The Court underlines that for deprivation of liberty to be lawful for the purpose of educational supervision, the state is obliged to create suitable institutional guarantees, corresponding to the requirements of security and the purpose of education. It has stated that "[t]he detention . . . in conditions of virtual isolation and without the assistance of staff with educational training cannot be regarded as furthering any educational aim."17 The findings of the visits of BHC representatives in CBS and SBS show that owing to the lack of financial and personal resources, in practice no specialised educational care is applied with regard to CBS inmates. Such care would include daily consultations with a psychologist, trained for work with juvenile offenders, participation of the children in worldwide-established behaviour correction programmes and the assertion of positive social values. The lack of properly trained personnel for work with children at risk and of specialised psychological and pedagogical assistance deprives the children of the necessary care for their re-education and personality development. Due to this, there is a danger of the purpose of placement in CBS and SBS in some places not being the care for juveniles, but their isolation from society. This is indisputably a violation of Article 5.

1.3. Violation of Article 5, paragraph 4 Article 5, paragraph 4 of the ECPHR requires control of the lawfulness of deprivation of liberty. The concern for human rights, and the rights of the child in particular, requires guarantees that the decision to deprive minors of liberty for the purpose of educational supervision, is subject to an examination of its lawfulness. In the case of Winterwerp the Courts pointed out that the detained person should have be given opportunity to heard by court and argue his case alone or through a representative18. In the cases of Toth, Lamy and Sanchez-Reisse the lack of adversarial proceedings was found to be in violation of Article 5, paragraph 419.

The requirement of the European Convention for control of the lawfulness of deprivation of liberty is not guaranteed by the procedure of placement in CBS and SBS. Juveniles placed in these schools are deprived of the possibility to appeal the decision for their placement before court. The decision of the local commission for placement in CBS is examined ex officio by a judge, but the proceedings are not

adversarial. The judge only gives an opinion on whether the decision conforms to the law, i.e. on its lawfulness. He is neither obliged to collect evidence, nor to hear the juvenile. In turn, the decisions for placement in SBS may not be appealed and examined by a court. The same applies to decrees whereby prosecutors place juveniles in CBS. 2. Violation of Article 6, paragraph 1 According to Article 6, in the determination of his/her civil rights and obligations or of any criminal charge against him/her, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

2.1. Applicability of Article 6 to placement in reform schools Bulgarian law takes a special approach with regard to juveniles who have committed anti-social acts, regardless of whether they are crimes or not. This peculiar approach is expressed in the refusal to seek criminal responsibility or to mitigate the criminal responsibility of children exhibiting deviant behaviour. The procedure of having anti-social acts of juveniles examined by a non-judicial body, such as the local commissions and the prosecutor's office, is a manifestation of the practice, upheld in international law, to avoid seeking assistance by the court and contact with the judicial system, except in case of the most serious crimes20.

Regardless of the character of the proceedings, however, the guarantees of fair trial must be applied with a view to protecting the rights of children from abuse by the decision-making body. This is also the opinion of the European Commission and Court which in the case of Engel accepted that the character of the proceedings under domestic law is not decisive for the applicability of Article 6 21. The aim is to restrict the possibility of national authorities evading the obligations under this provision by providing for disciplinary proceedings for violations which with regard to their nature or the character of the imposed sanction are regulated or in any case should be regulated by criminal law.

The application of the criteria established by the Court for determining the presence of a "criminal charge" in given proceedings and the application of Article 6 lead to the conclusion that proceedings for the placement in CBS and SBS have to satisfy the requirements of Article 6. The criteria established by the bodies in Strasbourg are as follows: a) qualification of the norm whose violation is claimed under national law Article 13, paragraph 5 of the JDA provides for the measure "placement in CBS" by the local commission to be imposed for serious anti-social acts. To impose the measure "placement in SBS" also requires an anti-social act to have been committed. Although the JDA does not provide a definition of anti-social acts, practice shows that children who are guilty of crimes such as thefts, of inflicting bodily injury or begging are placed to CBS and SBS. b) nature of violation The second criteria refers to the scope of the violated norm and to the purpose of the punishment.

The scope is linked with whether the violated norm refers only to concrete persons or whether it is binding. The juveniles placed in CBS and SBS have violated norms, which in the majority of cases are not specifically addressed to anyone and are binding. They are perpetrators of acts which de jure are qualified as crimes.

The purpose of the punishment is a sub-criteria which serves mainly to distinguish punitive from purely administrative sanctions. Under Bulgarian law the purpose of the punishment in criminal law and in administrative law are the same - to exert a warning and re-educational impact on the perpetrator and other persons. The only difference is that criminal law aims to restrict the perpetrator's possibility to commit new crimes through the punishment. By its very nature, placement in a reform school restricts the liberty of the confined children and consequently also aims to restrict the possibility of committing

new crimes. c) Nature and severity of the punishment According to the practice of the Court, deprivation of liberty is considered a one hundred per cent punitive sanction and thus lends a criminal character to the otherwise disciplinary or administrative proceedings to such an extent that Article 6 becomes applicable. In our case it concerns deprivation of liberty (see the above arguments).

2.2. The procedure for placement in CBS and SBS is in contravention of Article 6 due to nonapplication of the principles of fair trial in proceedings before the local commission and the decision for placement by a prosecutor.

Violations of the right to fair trial in the procedure for placement in CBS and SBS: 1. With regard to the placement in CBS on the basis of a prosecuratorial decree, there is no impartial and independent authority to take the decision for placement. Prosecutors are not such an authority since they represent two functions - an accusatory function and the function of examining and ruling on the case in substance.

2. Children do not have the right to be represented by a lawyer. This is a violation of the principle of equality of arms and of the right to defence.

3. The requirement of the adversarial procedure is also violated.

4. Violation of the right to call and cross-examine witnesses.

5. Criminal law rules of collecting evidence are not applied.

6. The requirement of the prosecution proving its allegations and the right of the child to remain silent is missing.

7. Freedom from self-incrimination is not guaranteed.

8. The right of defendants to the basic safeguard of the presumption of innocence is not guaranteed 9. Defendants are not given time and possibilities to prepare their defence.

The care for children in Bulgaria requires constant revising of the existing legal framework for the purpose of overcoming the contradictions with international standards and to ensure maximum protection of the rights of the child. The work of persons professionally committed to the problems of children should as a rule focus public attention on the situation of juveniles. On the other hand, public concern should induce legislators to always be willing to discuss and adopt laws which protect children and their well-being.

Footnotes: [1] This requirement of the Penal Code shall not apply: a) where the underage convict has committed a crime during the serving of punishment by deprivation of liberty, and b) where he/she has been convicted after completing full age. The exception shall also apply in cases of second conviction, provided the court finds that for the correction and re-education of the perpetrator it is necessary for him/her to serve the sentence of deprivation of liberty and where: a) the term is not less than six months, or b) the perpetrator has already served a punishment by deprivation of liberty. back [2] See articles 5 and 6 of the CBS Regulations and articles 3 and 4 of the SBS Regulations. back [3] The term "court" includes both the figure of the judge (or judges), as well as specific legal proceedings. One major shortcoming of the Child Protection Act is that it does not cite either the competent court or the legal procedure for examining petitions and the different proceedings. back [4] Depriving a child of legal counsel also contradicts the Constitution of the Republic of Bulgaria which in Article 30, paragraph 4 guarantees that everyone has the right to legal counsel from the moment of detention or accusation. back [5] Article 5 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ‌.. d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation. back [6] Report of 19 July 1974, Engel, B. 20 (1978), p. 60 back [7] Judgement of 28 November 1988, A. 144 back [8] See Article 34 of the CBS Regulations. back [9] See Article 38 of the CBS Regulations and Article 33 of the SBS Regulations. back [10] See Article 35 of the CBS Regulations and Article 30 of the SBS Regulations. back [11] Interviews of the author with girl pupils from the CBS in the village of Podem, Pleven region, conducted in December 2000. back

[12] See Judgement on the Malone case of 2 August 1984, A.82, p. 31. back [13] Judgement of 25 March 1983, A.61, p. 33, para. 87 back [14] Ibid. para. 88 back [15] The Penal Code provides a definition of an "act dangerous to society" (Article 10): "Dangerous to society shall be an act which threatens or harms the person, the rights of the citizens, the property, the legal order established by the Constitution in the Republic of Bulgaria or other interests, protected by the legal system." back [16] See Article 12 of the JDA, the italics belong to the author. back [17] See Judgement on the case Bouamar of 29 November 1998, A. 129, p. 21, para. 52 back [18] Judgement of 24 October 1979, A. 33, p 24 back [19] Judgement of 12 December 1991, A. 224, 30 March 1989, A-151 and 21 October 1986, A 107 back [20] See Rule 11 of the Beijing Rules back [21] Judgement of 8 June 1976, A. 22