Highlighting key issues from BCNL’s “Can Justice in Bulgaria be Child-Friendly? A Contextualized Analysis of the Steps, Safeguards, and the Reluctance in terms of the Implementation of Directive 2012/29/EU and Directive 2016/800/EU”
Written by: Kendra Landry
The criminal justice system for children in Bulgaria has long been criticized for its lacunae – especially with respect to the best interests of children suspected or accused of committing crimes. There have been “several attempts” to reform this system in recent years; however, despite minor legal amendments, the system has remained mostly unchanged. In their 2021 report “Can Justice in Bulgaria be Child-Friendly?,” the Bulgarian Center for Non-for-Profit Law criticizes the state for failing to meet the rights and needs of child offenders. The Center calls for the implementation of Directive 2012/29/EU and Directive 2016/800/EU into Bulgarian law; the former Directive explicitly deals with children who are victims of crimes, while the latter targets children suspected or accused of committing crimes. In this blog post, I will focus on child offenders and Directive 2016/800/EU; I will briefly outline the Directive’s key points, before discussing on-the-ground realities in Bulgaria and their incompatibility with the obligations set out therein. As it is currently conceptualized, the Bulgarian criminal justice system for children does not account for the best interests of child offenders; legal, procedural, and systematic reform is sorely needed to implement the principles outlined in 2016/800/EU.
Directive 2016/800/EU: Safeguards for Children Suspected or Accused of Committing Crimes
Directive 2016/800/EU specifically deals with the rights of children under the age of eighteen suspected or accused of committing crimes. The Directive aims to “establish procedural safeguards to ensure that children … are able to understand and follow [their criminal] proceedings and to exercise their right to a fair trial, and to prevent children from re-offending.” It confirms that the best interests of children are “always a primary consideration” in cases of child offending, and that the child justice system must aim to reintegrate these children into society. Among other rights for suspected or accused children, the Directive underlines the right of access to a lawyer, the right to not incriminate themselves (the right to remain silent), the right to the protections of privacy, and the right to information. Moreover, it holds that, wherever possible, legal professionals who work with children should have specific competence in the field and access to special training – whether in children’s rights, child psychology, appropriate questioning techniques, etc.
One of the Directive’s most important points is its call for the ‘individual assessment’ of suspected or accused children, to “identify their specific needs in terms of protection, education, training and social integration, to determine if and to what extent they would need special measures during the criminal proceedings, the extent of their criminal responsibility and the appropriateness of a particular penalty or educative measure.” The Directive sets out the primary considerations of the individual assessment: the child’s personality and maturity; the child’s economic, social and family background; their living environment; their vulnerabilities; etc. Article 7(5) holds that this assessment should be conducted as early as possible, so it can inform judges, prosecutors, and other authorities at the earliest stages of the trial. Article 7(4) explains that the individual assessment will serve to inform measures taken to benefit the children, to inform all other decisions made in the course of criminal proceedings (including sentencing), and to assess the appropriateness and effectiveness of measures ordered. The Directive also explicitly states that derogation from this obligation of individual assessment is only warranted in limited circumstances when compatible with children’s best interests. As childhood criminality is often motivated by poverty and other social factors, decisions made with respect to children should be informed by their life circumstances, with an eye to their best interests and their integration into the country’s social fabric.
Children are particularly vulnerable when confronted with the justice system, especially when they are already marginalized, disadvantaged, abused, or mistreated. The obligations outlined in Directive 2016/800/EU are fundamental to the fair administration of justice. The on-the-ground realities in Bulgaria, however, are a far cry from the principles elucidated in the Directive; currently, these vulnerable parties are further prejudiced by the child justice system, its actors, and the measures taken to reprimand them.
The Child Justice System in Bulgaria: Present-Day Realities
Current realities in Bulgaria stand in stark contrast to the aspirations set out in Directive 2016/800/EU. The country’s child justice system is underpinned by the Juvenile Delinquency Act, which does not require that the best interests of children be assessed at any stage during criminal proceedings. Though the Act requires child offenders to be handled separately from the country’s penal justice system, it is still heavily focused on punishment and detention. In 2018, Velina Todorova wrote that the most common measure ordered under the Juvenile Delinquency Act is placement of accused children in correctional institutions; the Act, then, can be described as a “specific quasi criminal law.” This punitive focus is detrimental to the children’s best interests.
Child offenders, and other children who behave anti-socially, are often at risk – these include children without parents or proper care and education; victims of abuse, violence, exploitation; etc. Their behaviour is often determined by their social environment. As Velina Todorova writes: “it is obvious a child could simultaneously be in need of care under [the child protection system] and the [juvenile justice system].” However, currently, these systems are exclusive in Bulgaria; Todorova affirms that the child justice system suffers from important lacunae, such as “interaction with child protection policies and practices.” The Minister of Labour and Social Policy has opined that the child protection system in Bulgaria is not geared toward children with behavioural problems; instead, the child justice system is often perceived as more suitable for young offenders than social work and social services. However, as child offending is often engendered by social and socioeconomic factors, it is clear that children stand to benefit from the interaction of these two systems.
Likewise, in their 2021 report, BCNL affirms that the child justice system “does not function in coordination with the systems of education, health and social protection.” This lack of coordination hinders the ability of the system to reintegrate children into society and has negative implications for recidivism. BCNL’s report affirms that the current legal system in Bulgaria does not provide for the education of detained children and does not offer reintegration programs. This violates several rules of international law, especially as children are remanded into custody for long periods of time, often exceeding the maximum periods prescribed by law. This lengthy detention, which deprives children of all necessary supports, can traumatize (or retraumatize) them; they often turn to suicide in detention facilities, as they are stripped of human dignity and compassion. Judges have attested that they often choose between institutionalizing children or sending them back to abusive and exploitative families. In both cases, children’s education suffers (especially when compounded with their social alienation), which negatively affects their future prospects and best interests. Coordination between the child justice system and other key systems in Bulgaria is gravely wanting.
Moreover, Todorova explains that the lack of coordination between key systems in Bulgaria is underscored by the “underdevelopment” of these systems. The child justice system, for instance, is plagued by a marked lack of resources, of personnel and training, of expert witnesses, etc. This lack of human and material resources undercuts the country’s ability to achieve the objectives set out in Directive 2016/800/EU – especially the obligation to conduct individual assessments. Regional courts, for instance, are worried about whether they could practically afford more than one or two individual assessments per year. This starkly contrasts the rules set out in the Directive – namely, that the obligation to conduct individual assessments cannot be derogated from unless derogation bolsters the best interests of the child.
Moreover, BCNL’s report affirms that even in rare cases where individual assessments are conducted, they are primarily used to obtain evidence to punish the child. Conversely to Directive 2016/800/EU, the Bulgarian Code of Criminal Procedure has not explicitly stated the objectives of data collected about the lives of underaged children. BCNL affirms: “[the Code] is not explicit regarding the assessment and measures that could be beneficial for the child during the criminal proceedings – protection, education, etc.” The goal of the individual assessment outlined in the Directive is not simply to collect data with an eye to punishment, but also to propose measures to benefit child offenders. Moreover, the rare individual assessments conducted in Bulgaria do not provide sufficient information about each individual child and their life circumstances. In interviewing several actors in the juvenile justice system, BCNL found that the reports seem to have been “drafted by means of copy-paste, as if it was the same child cloned in all these places.” This type of assessment does not conform to the expectations of the Directive, which underlines the importance of individual assessments in ascertaining children’s protection, punishment, education, training, and social integration needs.
In addition to the lack of individual assessments conducted to children’s benefit, the rights of accused children are often undercut by different actors within the Bulgarian justice system. For instance, Human Rights Watch reported that children are often manipulated and subjected to physical abuse by the police in the country, which quashes many of the rights elucidated in Directive 2016/800/EU. Children are often tricked into incriminating themselves and their families as they are arrested, and even when they are interviewed after their arrests. In their report, BCNL explains the tactic of police and prosecutors who often summon children as witnesses and not as suspects to circumvent their right to representation. BCNL affirms that in most cases, children are interviewed without lawyers in the pre-trial phase, which runs counter to several rights listed in the Directive (the right to representation, the right to not incriminate themselves, the right to information, etc.). This illustrates that when children are confronted with the juvenile justice system in Bulgaria, they must navigate a system ill-suited to their needs, and are often confronted with actors who actively undercut their best interests.
Todorova affirms that Bulgaria “regularly receives recommendations to change the [juvenile justice] system from the UN human rights treaty bodies and mechanisms and also from the Council of Europe.” In this blog post, I have illustrated several of countless poignant issues with the system, which run counter to the recommendations and obligations regularly received by the country. Directive 2016/800/EU needs to be better implemented into the Bulgarian legal system; in particular, individualized assessments are primordial to ensure respect for the best interests of children accused of crimes. Currently, the child justice system quashes children’s best interests, their educational aspirations, and their potential for reintegration into society. We must advocate for change, to benefit those among the most vulnerable in Bulgarian society.
 See Velina Todorova, “Juvenile Justice in Bulgaria: Reforms and Resistance” in Gillian Douglas et al, eds, International and National Perspectives on Child and Family Law: Essays in Honour of Nigel Lowe (Cambridge: Cambridge University Press, 2018) 283 at 283.
 See Bulgarian Center for Non-for-Profit Law, “Can Justice in Bulgaria be Child-Friendly? A Contextualized Analysis of the Steps, Safeguards and the Reluctance in terms of the Implementation of Directive 2012/29/EU and Directive 2016/800/EU” (2021) at 5, online (pdf): BCNL <http://bcnl.org/uploadfiles/documents/Child-Friendly_Justice_Bulgaria_Report_Eng.pdf>.
 EC, Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings  OJ, L 132/1 at para 1 [Directive].
 See ibid at para 8.
 See ibid at para 9.
 See ibid at paras 25-28, art 6.
 See ibid at para 29.
 See e.g. ibid, at para 56, art 14.
 See ibid, art 4.
 See ibid at para 63.
 Ibid at para 35; See also the right to individual assessment, ibid, art 7(1).
 See ibid at para 36, art 7(2).
 See ibid at para 39, art 7(5).
 See ibid, art 7(4).
 See ibid at para 40, art 7(9).
 See ibid at para 41.
 See Todorova, supra note 1 at 284.
 See ibid at 289.
 BCNL, supra note 2 at 6.
 See ibid at 25.
 For instance, this contradicts Directive 2016/800 and Art. 2 of Protocol No. 1 to ECHR.
 See BCNL, supra note 2 at 25.
 See ibid at 26.
 See ibid at 11.
 See Todorova, supra note 1 at 291.
 See ibid at 290-291; See also BCNL, supra note 2 at 20-21.
 See BCNL, supra note 2 at 22.
 See ibid at 6.
 Ibid at 19.
 See ibid; See generally Directive 2016/800, supra note 3.
 See BCNL, supra note 2 at 20.
 See Directive, supra note 3 at para 35.
 See e.g. Human Rights Watch, “Children of Bulgaria: Police Violence and Arbitrary Confinement” (1996), online: Human Rights Watch <https://www.hrw.org/legacy/summaries/s.bulgaria969.html>.
 See BCNL, supra note 2 at 16.
 See ibid at 33.
 See e.g. Directive, supra note 3 at paras 25-29, arts 4-6.
 Todorova, supra note 1 at 283.