The fight against terrorism in Bulgaria – a fight against terror or a fight against the state?

Author: Stefcho Stanev

Freedom or security?

 

Unfortunately, in recent years we have witnessed many brutal terrorist attacks in Europe. What

What happened in Stockholm is another reason to look at how Europe, and Bulgaria in particular, are trying to counter terrorism.

 

The eternal battle - limiting our human freedoms at the expense of security - is often a cover for a battle with those inconvenient to power, unlawful surveillance and suppression.

In mid-June 2016, the draft law on countering terrorism, which was submitted to the National Assembly, scandalized a large part of our society for precisely this reason.

As a Christmas present - in December - the law was adopted on second reading, after some changes. Since then, there have been many question marks about the guarantees for the observance of human rights when this act is applied. This text will describe and comment on some of them.

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What is “terrorism” in Bulgaria?

 

The definition of "terrorism" is broadly and vaguely formulated in the Criminal Code [1] - Art. 108a.

• Whoever, with the aim of creating confusion and fear among the population or of threatening,
• or to compel a public authority , a representative of the public or a representative of a foreign state or an international organization to do or omit something within the scope of his functions,

 

commits a crime under [2] (...) shall be punished for terrorism by imprisonment for 5 to 15 years, and when death is caused - by imprisonment for 15 to 30 years, life imprisonment or life imprisonment without parole

 

• Such a definition is contrary to basic principles of the rule of law, such as the principles of legality and legal certainty.
• Considering the marginalization of certain social strata such as minority groups, LGBT people, and I would add well-educated and critically thinking young Bulgarians( to be read differently from "the smart and the beautiful "),It is obvious that an overly broad definition can be a suitable tool for repression against these groups.
• There is also criticism that Art. 108a conflicts with other texts in the Criminal Code [3], the only difference being the subjective attitude of the perpetrator towards the purpose of the crime committed. But this is difficult for investigators to discern, as well as for determining the motives for detention.

 

 

And , how is terrorism defined in the USA and Russia?

 

USA: There, according to Section 802 of the " Patriot Act ", terrorism is defined as:

 

An act dangerous to human life, which is in violation of the penal code of the relevant state or of the United States, and which has the intent to:...

 

b/ influence government policy through threat or coercion;

c/ influence the behavior of the government through mass destruction, murder, or kidnapping .

 

Russia: It is famous for its strict laws, but they are not as clear or fair. However, the definition of terrorism is also more targeted than ours. Here is what we read in the relevant legislation ( Federal Law of March 6, 2006 N 35-FZ On Counteracting Terrorism):

 

Terrorist activity is an activity that includes:

 

a/organization, planning, preparation, financing and implementation of a terrorist act;

b/incitement to commit a terrorist act;

c/ organizing an illegal armed formation...

d/ recruiting, arming, training and using terrorists

e/ information or other assistance in the planning, preparation or implementation of a terrorist act

f/ propaganda of the ideas of terrorism...

 

We see that even in the great powers that have serious and daily problems with terror, their laws are not made with the aim of "crushing" civil rights and freedoms.

Let's assume that a terrorist act has been committed on our territory. Why should we be worried about our basic human rights?

 

A “state of emergency” for human rights?

 

A terrorist act would be grounds for declaring a “state of emergency.” [4] But because a “state of emergency” grants broad powers over the population, we should view this measure with skepticism:

• According to the Strasbourg Court (ECHR)[5], a state of emergency can only be declared in the event of a threat that[6]:
  • has actually occurred or is imminent;
  • to affect the entire nation and
  • to threaten the organization of public life;
  • the threat or crisis is of an exceptional nature.
• It is true that the state's "freedom of discretion" has been expanded in the wake of terrorist acts in Europe in the last 10-15 years [7].
• But it is also true that if an established republic with a democratic system like France can extend the time scope of the "state of emergency" and endure criticism from the Commissioner for Human Rights of the Council of Europe [8], international non-governmental organizations [9] and French institutions [10], then what can we say about Bulgaria, which is not known for its completely transparent procedures and respect for human rights even without the existence of a state of emergency with a tense situation.
• Hypothesis: would new protests like those from the “dawn of democracy” in the 1990s be considered to meet the criteria for declaring a state of emergency?! “Yes,” would be the answer from those in power, and it is precisely in their assessment of the proportionality [11] and necessity [12] of a “state of emergency” that we should fear, because they would be very aware that they would acquire extraordinary powers with which to “restore order” at the expense of our human rights.
• During an anti-terrorist operation , rallies, meetings or demonstrations, celebrations, cultural and sporting events, rituals or religious ceremonies may be suspended [13]
• During a state of emergency, it is also provided that telecommunications networks can be used free of charge by the state.

"Reasonable Assumption" - a tool for unjustified violation of our human rights

 

A favorite concept of repressive regimes is the “reasonable suspicion” of a crime. It is still unclear what such a suspicion entails, except that it can result in the “competent authorities” brutally detaining you, demanding confessions around which to “create” the necessary evidence for their “reasonable suspicion.”

Perhaps this is precisely why the "reasonable assumption" takes center stage in the new law and is the basis for tyrannical measures against our freedoms:

• Taking preventive measures as part of preventive activity to reduce the risk of committing terrorism. [14]
• Preventivemeasuremaybeto be taken when availabledatafrom which they may have madereasonable assumptionthat the person isrelatedwith terrorist activity.[15]
  • There is no concept of "connection", which implies a broad interpretation by law enforcement authorities as they see fit
  • It is possible that an acquaintance of a person (wrongly suspected of preparing) a terrorist act may turn out to be "connected", regardless of the content (shopping, for example) and the method of communication (why not Snapchat), with the suspect.
  • Also, there are no requirements for necessity and proportionality of preventive measures, which is a prerequisite for their application at the discretion of the state and is detrimental to fundamental human rights.
• Preventivemeasures, arebans [16]:
  • for changing residence without permission;
  • for leaving the country without permission;
  • for visiting certain places, areas and sites;
  • for leaving a certain settlement without permission;
  • to make contact with certain individuals without permission;
• Andmandatory
  • periodic reporting to a regional office of the Ministry of Interior and signing before a police officer;
  • confiscation of passports or replacement documents and prohibition on issuing new ones

Preventive measures are imposed by the Chairman of the State Anti-Corruption Agency or the Secretary General of the Ministry of Internal Affairs without judicial authorization. Affected persons may appeal such measures, but their application is not suspended during this period. The procedure itself is governed by the Code of Administrative Procedure, which does not provide the necessary procedural guarantees to protect affected persons against abuse. [17] Another obstacle is the impossibility of appealing to a higher court. [18]

In order for this repressive law to be complete, it cannot do without police and disproportionate powers that have been granted to the army, such as detention, use of force, searches, and entry into private property even without the owner's consent.

 

Does our sleepy society deserve such treatment?

 

On the public consultation portal [19], where the draft law was published, there is only 1 (one!) opinion from an NGO (Bulgarian Center for Non-Profit Law), 1 (one!) opinion from the Green Party and 2 (two!) comments from the same user. On Facebook, the post has only 2 (two!) comments. In reality, this is the entire public dialogue that has been carried out in the official order, on which we as a society can base our disagreement.

The discussions in the morning blocks and other publicistic shows cannot be denied, but they somehow do not resonate strongly in the public sphere and do not have a direct effect on the politicians on whom the adoption of this controversial law depended.

It is worth mentioning, however, that Bulgaria has never been elected to the UN Human Rights Council. This is no coincidence and perhaps one of the signs, but this time at the international level, that the dignity of the people in Bulgaria is often trampled upon. Many of our fellow citizens, who are frightened, and rightly so, by the terrorist attacks in Europe in the last few years, would think that such a law would really fight terrorism, while it basically deprives us of fundamental rights and freedoms.

 

Materials used:

Open position of the Bulgarian Helsinki Committee on the draft Law on Countering Terrorism, submitted to the National Assembly by the Council of Ministers - http://www.bghelsinki.org/bg/novini/press/single/otkrito-stanovishe-zakon-za-protivodejstvie-na-terorizma/

Amnesty International Public Statement (29 July 2016) - Bulgaria: Proposed counter-terrorism bill would be a serious step back for human rights

https://www.amnesty.org/en/documents/eur15/4545/2016/en/

Доклад на Amnesty International - The Ever-Expanding National Security State In Europe - https://www.amnesty.org/en/documents/eur01/5342/2017/en/

Fundamental Rights and Freedoms (Handbook) – Bulgarian Lawyers for Human Rights Foundation (2014) - http://blhr.org/media/documents/HANDBOOK_2014_FINAL_5.pdf

Blog of attorney Nikolay Hadjigenov - http://hadjigenov.com/?p=4057

Opinion of attorney Ekimdzhiev (published in Mediapool) - http://www.mediapool.bg/adv-ekimdzhiev-antiteroristichniyat-zakon-e-atentat-sreshtu-choveshkite-prava-news250162.html

[1] Criminal Code of Bulgaria (CC).

[2] Art. 115, Art. 128, Art. 142, Art. 143, Art. 143a, Art. 216, para. 1 and 5, Art. 319b - 319d, Art. 326, Art. 330, Art. 333, Art. 334, Art. 337, Art. 339, Art. 340, Art. 341a, Art. 341b, Art. 344, Art. 347, para. 1, Art. 348, Art. 349, Art. 350, Art. 352, para. 1, 2 and 3, Art. 354, Art. 356f, Art. 356h of the Criminal Code.

[3] Articles 96, 97, 97a and Articles 98 and 99 of the Criminal Code.

[4] Art. 40, para. 1 of the Law on the Protection of Personal Data.

[5] The European Court of Human Rights, which hears complaints about violations by member states of the Council of Europe of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

[6] Denmark v. Greece (The Greek case), applications no. 3321/67 et seq., report of the European Commission of Human Rights of 5.11.1969.

[7] A. and Others v. United Kingdom, application no. 3455/05, judgment of the Grand Chamber of 19.02. 2009.

[8] http://www.coe.int/en/web/commissioner/-/luttons-contre-le-terrorisme-dans-le-respect-du-droit

[9] https://www.amnesty.org/en/latest/news/2016/12/the-courage-to-end-frances-state-of-emergency/

[10] The French National Consultative Committee for Human Rights and the Ombudsman of France.

[11] UN Human Rights Council, General Comment 29 (2001), UN Doc. c. CCPR/C/21/Rev.1/Add.11, paras. 1, 2.

[12] UN Human Rights Council, General Comment 29, paragraph 4.

[13] Art. 39, para. 1, item 19.

[14] Art. 18, para. 4 LPT.

[15] Art. 24, para. 1 LPT.

[16] Art. 25, para. 1 LPT.

[17] Art. 26, para. 1 LPT.

[18] Art. 27, para. 9 LPT.

[19] The Public Consultation Portal aims to promote cooperation between citizens, businesses and non-governmental organizations, and experts in state institutions in the formulation of policies and the development of laws.