Analysis of the Bulgarian legislation about the anti legal deeds of the juvenile and under age delinquents 

by Maria Slavova [1]

 I.Catalogue of the acts

 The anti-legal acts of the juvenile and under aged persons are subject of a great number of special acts in the sphere of penalty. In the historical plan this matter is regulated with the acceptance of main penal and administrative-penal laws and sublaw legislation, as they are amended under the influence of the main factors for elaboration of the national legislation. The catalogue of the legal acts devoted to the anti-legal deeds of the juvenile and under age persons consists of:

1.Constitution of Republic of Bulgaria (published in State Gazette no 56 dated July 13^th 1991, amended)

2.Convention of the rights of the child (adopted by the general meeting of UNO on November 20^th 1989)

3.Penalty code of Republic of Bulgaria (published in State Gazette no 26 dated April 2^nd 1986., revised - State Gazette No 29 dated April 12^th 1986, amended)

4.Penal Procedure Code (published in State Gazette No 86 dated October 28^th 2005, amended)

5.Law for Child Protection (published in State Gazette No 48 dated June 13^th 2000, amended)

6.Law for fight against the anti-legal deeds of the juvenile and under age delinquents (published in State Gazette no 13 dated February 14^th 1958, amended)

7.Law of administrative offences and penalties (published in State Gazette No 92 dated November 28^th 1969, amended)

8.Law for Ministry of internal affairs (published in State Gazette No 17 dated February 24^th 2006, amended)

9.Law for state agency “National Security” (published in State Gazette No 109 dated December 20^th 2007, amended)

10.Law for control over narcotic substances (published in State Gazette No 30 dated April 2^nd 1999, amended)

11.Law for national education (published in State Gazette No 86 dated October 18^th 1991, amended)

12.Law for preservation of the social order during sport actions (published in State Gazette No 96 dated October 29^th 1991, amended)

13.Decree No 904 of minor hooliganism (published in State Gazette No 102 dated December 31^st 1963, amended)

14.Regulation for implementation of Decree No 904 (published in State Gazette No 106 dated December 3^rd 1004, amended)

15.Regulation of the children pedagogical departments (published in State Gazette No 92 dated August 7^th 1998, amended)

16.Regulation of the organization and work of the houses for temporary compulsory accommodation (published in State Gazette No 83 dated July 21^st 1998, amended)

17.Regulation of execution of the Law for national education (published in State Gazette No 68 dated July 30^th 1999, amended)

18.Regulation of organization and activity of the orphanage (published in State Gazette No 29 dated March 30^th 1999)

II.Critical review of the legislation

1. The Penalty Code of the Republic of Bulgaria gives the legal definition of the terms juvenile and under age delinquents.

According to Art. 32, paragraph 1 of the Penalty Code a juvenile delinquent is a person under the age of 14. He/ she is not liable. But this does not mean that such person is unable to do an anti-legal deed. Regarding this delinquent a lot of measures can be executed in case he/she committed such deed.

Rather different is the legal method of approach towards under age delinquents. According to Art. 32, paragraph 2 of Penalty Code this is a person of the age over 14 and under 18. This person is liable if he was able to understand the meaning and sense of his deed and to manage his deeds. The under age delinquents, whose deed cannot be imposed as a guiltiness are going to be accommodated, under the Court decision, in special schools – boarding schools – or in any other appropriate school, if the circumstances enforce it. Regarding the liability of the under age persons the special rules of the Penalty Code are executed. These rules are stated in Chapter VI of the Penalty Code.

According to Art. 60 of the Penalty Code the penalty is imposed with the aim before all the under age delinquents to be reformed and prepared for work, useful for the society. Exactly because of this – and regarding an under age person, who committed a criminal deed due to passion or frivolity and if this deed does not represent a great public danger, the public prosecutor can take a decision not to form or to cease the pre-court procedure and the court may take a decision this person not to be given for judging or such person may not be convicted, if towards him measures, according to the Law for fight against the anti-legal deeds of the juvenile and under age delinquents, can be successfully executed. In such cases the court may impose measures alone, informing about them the regional commission for fight against anti-legal deeds of the juvenile and under age delinquents or sending to this commission the file for execution of these measures; when the prosecutor takes a decision not to form a pre-court procedure or to cease the already formed pre-court procedure, he sends the file to the commission for imposing an educational measure.

Only the penalties imprisonment, probation, public reprimand, deprivation for execution of certain professions or activities can be imposed on the under age delinquents.

According to Art. 63 of the Penalty Code the penalties foreseen for the under age delinquents in the differentiated part are substituted with significantly light penalties. With a view to the penalties, the legislator makes difference between the persons over the age of 16 and under this age. When the penalty is imprisonment and its execution is not reprieved, the under age person is exempted from the execution of the penalty and the court accommodates the person in a special school – boarding school, or determines any other measure, foreseen in the Law for fight against the anti-legal deeds of the juvenile and under age delinquents. According to prosecutor’s proposal or according to the regional commission’s proposal, the court may, even after enacting the penalty, to substitute the accommodation in a special school with any other educational measure. The Penalty Code allows the under age delinquent to be dispensed from the liability by the execution of the respective educational measure.

According to Art. 55, paragraph 1 of Penalty Code in case of exceptional or multitudinous mitigating circumstances, when even the lightest penalty should be disproportionately heavy, the court substitutes the imprisonment, when the lowest limit for the under age persons is not foreseen, with probation or public reprobation.

There is another peculiarity – the under aged persons serve the term of imprisonment till reaching the age of 18 in a reformatory. In relation to the persons who are under 16, the probation measures corrective labor and free labor in favor of the society are not executed. In case of imposing severe measures for crimes, being dangerous recidivism according to Art. 29 of Penalty Code, the crimes, committed by under age delinquents, are not taken into consideration.

When the court reprieves the execution of the penalty for an under age person, the court informs the regional commission, which should organize the execution of the educational measures.

Regarding persons with suspended sentence for a crime which was committed being under age person, the duration of the test period is from one to three years and the court may enact a partial or a full release of the serving of the term of imprisonment for the penalty, which execution was reprieved.

The court may liberate the sentenced under age delinquent, if he mended his way after he had served not less than one third of the term of imprisonment, as the court assigns the organization of the control and the cares about him to the regional commission for fight against the anti-legal deed of the juvenile and under age delinquents.

2. The orders of the Penalty Code are expressed in concrete forms in the special Law for fight against the anti-legal deeds of the juvenile and under age delinquents. This law establishes the activity connected with preventing of and the fight against the anti-legal deeds of the juvenile and under age delinquents as well as the activity connected with the insurance of the normal development and education of the perpetrators.

The legal definition of the term “anti-age deed” is given in the additional orders of the law. According to Art. 49a, paragraph 1 of the additional orders the anti-legal deed is a deed which is dangerous for the society, which has illegal character or which contradicts to the ethics and moral.

In its structure the law is separated into two parts – 1) bodies and institutions which execute the activity connected with preventing of and the fight against the anti-legal deed of the juvenile and under age delinquents and 2) the measures connected with preventing of and the fight against the anti-legal deed of the juvenile and under age delinquents and the procedures of imposing these measures.

2.1. The main bodies in the sphere are the commissions for fight against anti-legal deed of the juvenile and under age delinquents. The central commission for fight against anti-legal deed of the juvenile and under age delinquents is formed to the Council of Ministers. Its structure is defined in Art. 4 paragraph 1 of the Law for fight against the anti-legal deeds of the juvenile and under age delinquents. This commission is a juridical person with budget support, its seat is in Sofia. The number of its members and their tasks are defined by the Council of Ministers. The rights of the commission are completely defined in Art. 8 of the law. A center for qualification of the personnel for fight against anti-legal deed of the juvenile and under age delinquents, attached to the central commission, is also formed.

Regional commissions for fight against anti-legal deed of the juvenile and under age delinquents are created attached to the municipalities or the regions. According to the decision of these commissions and when it is necessary, regional commissions attached to the communes may be also formed. The structure of these commissions is from 7 to 15 members and it is defined with the Mayor’s ordinance. The Chairman is the Deputy Mayor. The Chairman of the regional commission in a region or municipality is the Mayor. The commissions include representatives of the municipality administration, responsible for the problems of the education and protection of health, representatives of the departments “Social Aid”, of police, also pedagogues, psychologists, jurists, physicians, public figures, etc. A representative of the regional prosecutor’s office take participation in the commissions’ meetings. The tasks of the commissions are indicated in Art. 10 of the law.In the course of execution these tasks connected with the fight the against anti-legal deed of the juvenile and under age delinquents commissions may involve juridical persons which are non-governmental organizations on the territory of the respective municipality and they may also form auxiliary bodies as centers, consulting offices, “hot telephone lines”, etc.

Children’s pedagogical departments are also formed, attached to the municipality council. When necessary, such department may be formed to the regions or communes. These children’s pedagogical departments have tasks as follows:

a)to find and determine the juvenile and under age delinquents, as well as the reasons and conditions for their anti-legal deeds or crimes;

b)to find and determine the juvenile and under age person – object of criminal violation, maltreatment or leftwithout control;

c)to realize measures or to inform the competent bodies;

d)to inform the prosecutor’s office about the signal of guilty behavior regarding juvenile or under age persons from the side of parents, of the persons substituting parents or third parties;

e) n>to watch the execution of the measures, realized for the juvenile or under age delinquents.

Pedagogical boarding-schools are formed for accommodation of the juvenile and anti-age delinquents who are threat to the public peace. There are two kinds of them:

In the public-pedagogical boarding-schools are accommodated juvenile over the age of 8 and under age delinquents who had committed or there are preconditions for commitment of anti-legal deeds.

In educational boarding-schools are accommodated juvenile over the age of 8 and under age delinquents, who had committed anti-legal deeds, towards which the measures according to Art. 13 paragraph 1 – 10 and 12 of the Law for fight against the anti-legal deeds of the juvenile and under age delinquents did not been enough and there is not an appropriate social environment for their normal education. In these scholls may be also accommodated under aged delinquents, towards which the court or the prosecutor had imposed such measure in accordance with Art. 61 and 64 of the Penalty Code.

The maximal duration in an educational boarding-school and in public-pedagogical boarding-schools is three years. The accommodated persons may stay their in order to obtain appropriate education as well as professional qualification till reaching the age of 16 and if they express their will in written form- till reaching the age of 18.

The houses for temporary accommodation of juvenile and under age persons are formed by the Ministry of interior affairs as it determines their region of operation. In these houses are accommodated juvenile and under age persons who:

a)the permanent and present address cannot be determined;

b)are caught in vagrancy, mendicancy, prostitution, alcohol abuse, use or distribution of drugs or other anesthetic substances;

c)willfully left institutions for obligatory education or compulsory medical treatment;

d)had committed anti-legal deeds and being in state of such uncontrolled situation, which makes their stay/life with their parents or with the persons who substitute them inexpedient one.

The living period in such institutions cannot be longer than 15 days. The stay with duration over 24 hours should be permitted by the prosecutor.

There are also orphanages for uncontrolled children which are specialized institutions for offering social services. According to the Law for child protection the children who are uncontrolled are accommodated temporally in these orphanages free of charge.

2.2. The measures for preventing of and for the fight against the anti-legal deeds of the juvenile and under age delinquents are indicated in Art. 13 of the Law fight against the anti-legal deeds of the juvenile and under age delinquents. Thes measures are as follows:

a)a warning notice

b) an obligation for offering an apology

c) an obligation for participation in consultations, educational programs for overcoming the aberrations in the behavior;

d) setting the parents or the persons who substitute them under educational surveillance with the obligation for realizing consolidated cares;

e) setting under educational surveillance of a public supervisor;

f) a prohibition for the juvenile to visit certain places;

g) a prohibition for the juvenile to meet and to establish contacts with certain persons;

h) a prohibition for the juvenile to leave his present address;

i)an obligation for the juvenile to eliminate the damages he had caused if this is not beyond his possibilities;

k) an obligation for the juvenile to realize a certain work in favor of the society;

l) an accommodation in public-pedagogical boarding-school;

m) a notice for accommodation in an educational boarding-school with test period of 6 months;

n) an accommodation in an educational boarding-school.

The competent body for observing educational cases of anti-legal deeds, committed by juvenile and under age persons, and crimes, committed by juvenile and under age persons exempted from liability according to Art. 61 of the Penalty Code, is the regional commission according to their present address. According to the character of the committed crime it can be imposed more than one measure.

3. Special rules for observation of crimes, committed by juvenile and under age delinquents are regulated in the Penal Procedure Code. Some of the more important issues are connected with the special rules for implementation of the different stages of the penalty process and connected with them methods of evidences.

Pre-court procedure of penalty cases is implemented by certain investigating bodies with special training. Regarding the under age delinquents only some of the foreseen measures are implemented and they are as follows: surveillance realized by the parents or trustee and by the administration of the educational institution in which the under age delinquent is accommodated, surveillance realized the inspector from the children pedagogical department or by a member of the regional commission for fight against the anti-legal deeds of the juvenile and under age delinquents. It is important to note here that the measure “take under escort” can be implemented in exceptional cases as the under age delinquents are accommodated in appropriate institutions separately from the adults and his parents and the director of the school if the delinquent is a student are immediately informed about. When it is necessary, a pedagogue or a psychologist may be at the examination of the juvenile defendant. They may ask question after the permission of the investigating body.

It is obligatory the parents or the trustee of the juvenile defendant to be informed about the investigation.

The court session for cases against juvenile delinquents is realized under closed door except the court finds that it should be a public interest if the case is observed in public meeting. In the opinion of the court inspectors from the children pedagogical department may be invited, as well as representatives of the educational institution where the delinquents study. The parents or the trustee of the delinquents are obligatory summoned. They have the right to take participation in gathering and checking the evidences and to make claims, notes and objections.

There are a range of other specific aberrations from the general rules of observation of penalty cases.

4. A range of special laws - for example the Law for the Ministry of internal affairs and the Law for the state agency “National security” - regulates the peculiar rules for realization of the rights of different state bodies for reaction against the anti-legal deeds of juvenile and under age delinquents.

III. Suggestions for improvement of the legislation

The existing legislation about the anti-legal deeds of the juvenile and under age persons should be unified according to the international standards and as well as to the standards of the European Union. The process of harmonization should include not only the modern concepts for the differentiation of the liability of the juvenile and under age persons but also the methods and the measures for prevention and coping with the anti-legal actions.

Moreover we should have in mind the necessity of training specialized personnel capable of practicing the right method to this social group.

Not in the last place the need of a better financing of the authorities and the institutions in this public sphere should be noticed. The increaseof resources would provide the possibility to affect preventively on the juvenile and under age persons and also to achieve the general and the specific aims of the penal in the best possible way.