ERRC/Human Rights Project Press Release: Roma Denied Fair Trial and Subjected to Disproportionate Enforcement of Controversial Legislation in Bulgaria

12 December 2003

On December 12, 2003 the European Roma Rights Center (ERRC) and the Sofia-based non-governmental organsiation Human Rights Project (HRP) sent a letter to the Chair of the Bulgarian National Assembly and to the Prime Minister of Bulgaria expressing concern about cases in which Bulgarian citizens of Romani ethnicity have allegedly been subjected to a range of types of arbitrary treatment violating Bulgarian and international law on the protection of human rights, including: physical abuse by law enforcement officers; denial of fair trial guarantees; denial of an effective remedy; and racial discrimination. Furthermore, the ERRC and the HRP note that current Bulgarian legislation regulating misdemeanours, namely the Decree on Petty Hooliganism, calls into question Bulgaria's compliance with the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) on a number of grounds.

The full text of the ERRC/HRP letter follows:

Honourable Mr Gherdjikov and Mr Saxe-Coburg-Gotha,

The European Roma Rights Center (ERRC) is an international public interest law organisation which monitors the human rights situation of Roma in Europe and provides legal defence in cases of human rights violations. The Human Rights Project (HRP) is a non-profit organisation which focuses on monitoring the human rights situation of Roma in Bulgaria and on legal defence of Roma.

We are writing to you to express concern about cases in which Bulgarian citizens of Romani ethnicity have allegedly been subjected to a range of types of arbitrary treatment violating Bulgarian and international law on the protection of human rights, including:

• physical abuse by law enforcement officers;
• denial of fair trial guarantees;
• denial of an effective remedy;
• racial discrimination.

Furthermore, we note that current Bulgarian legislation regulating misdemeanours, namely the Decree on Petty Hooliganism, calls into question Bulgaria's compliance with the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) on a number of grounds. The following recent cases documented by the ERRC/HRP illustrate our concerns:

• At around 7:00 PM on November 17, 2003, sixty-year-old Mr Joseph Argirov and his twenty-nine-year-old son Ivan, Romani residents of the Iztok Romani neighbourhood of Pazardjik, were charged under the Decree on Petty Hooliganism after being beaten by police officers outside the premises of the local hospital in Pazardjik, while mourning the death of their spouse and mother Zlatka. According to the testimony of Mr Argirov given to the ERRC/HRP, on the day in question, Mr Argirov, his son, two daughters and sister, Ms Bozhidara Popova, who were informed by the hospital personnel about the death of their relative, began to mourn loudly and Ivan later suffered a nervous breakdown. Mr Argirov fainted and hit his head on the hospital door. Hospital security staff called the police and a police vehicle carrying two officers arrived, followed soon thereafter by four more officers. One of the officers from the first vehicle reportedly verbally attacked Mr Argirov and his family before knowing the reason for their behaviour and attempted to expel them from the hospital using abusive language and cursing their ethnicity. Ms Bozhidara Popova testified that officers told them they could cry and weep in the Romani neighbourhood but not at the hospital. While arresting Mr Argirov and Ivan, officers reportedly used physical force. According to Mr Argirov, after their brutal arrest, he and his son were detained at the Pazardjik Police Station where they were beaten by officers in the corridors of the police station and then separated. At approximately 9:00 PM, Mr Argirov was taken to the hospital where he saw his son. After medical examinations, Mr Argirov and his son were taken separately back to the police station. According to Mr Argirov, he was forced to sign documents that he did not fully understand. None of the officers explained the contents of the documents to him and he did not receive a copy of what he signed. On November 17, Mr Argirov signed the charge against himself and his son Ivan in accordance with the Decree. Inspecting the police document charging Mr Argirov, the ERRC/HRP established that, in violation of the Act on Administrative Offences (Article 42(5)), the document did not mention under which Article of the Decree on Petty Hooliganism the two were charged. The text of the police document was made in one copy only and there is no evidence that a copy of it was given to Mr Argirov or Ivan, who were released from custody at around 1:00 AM on November 18.

On the morning of November 18, Mr Argirov was issued a medical certificate attesting to his injuries. Throughout the day, Ivan's condition deteriorated and at around midnight, he was admitted to the Plovdiv Hospitals Psychiatric Ward. On November 19, Zlatka's funeral took place and that evening, Mr Argirov received notice to appear in court at 10:30 AM the next day. At around 9:15 AM on November 20, Mr Argirov met an attorney hired by his family. The hearing started at 10:30 and lasted approximately forty minutes. The two officers from the first vehicle gave witness testimony, as well as two hospital security guards who were on duty at the time of the incident and Ms Popova. Despite large discrepancies between the accounts of prosecution and defence witnesses, the court did not hear third-party witnesses to clarify the factual situation although information that many passers-by were present at the scene was provided to the court. The court also did not give weight to Ms Popova's statement because "[...] she is the sister of the offender Argirov and is trying to give evidence acquitting him," according to the court transcripts. Mr Argirov was sentenced to three days imprisonment at the Pazardzhik Police Station where he was taken directly from the Court. At around 4:15 PM on the same day, Mr Argirov fell ill and after being given two injections to lower his high blood pressure, he was released from custody due to aggravated health condition at 7:30 PM without serving the rest of his sentence.  

• In an earlier incident, again involving residents of the Romani neighbourhood Iztok in Pazardjik, at around 6:00 PM on September 6, 2003, an eighteen-year-old Romani man Mr Shteryo Georgiev got into a fight in the Iztok Romani neighbourhood and Mr Yanko Angelov, another Romani man from the neighbourhood, intervened. According to the testimony of Mr Angelov given to the HRP, at about 9:00 PM, two police vehicles arrived and police officers arrested Mr Georgiev, Mr Angelov and the third unknown man. During the arrest, the officers beat Mr Georgiev, resulting in numerous injuries on his head and body. All three men were taken to the Pazardjik Police Station where they were charged with petty hooliganism in accordance with Article 1 of the Decree. Mr Angelov testified that officers did not allow him to call a lawyer, though he requested one. On the following day, a Sunday, the three men appeared before the Pazardjik District Court early in the day. The trial lasted not more than one hour. Mr Angelov testified that he did not have a lawyer and he was not allowed to bring witnesses in his defence or examine the evidence against him. According to Angelov, the court gathered witness testimony from the officers only. The three Romani men were sentenced to fifteen days imprisonment at the Pazardjik Police Station the maximum punishment allowed under the Decree.

The cases presented above contain allegations of numerous violations of the ECHR:

1. According to the victim's testimonies, police officers have subjected them to inhuman and degrading treatment in violation of Article 3 of the ECHR.

2. The actions of the law enforcement and judicial authorities call into question the respect for the fair trial guarantees contained in Article 6(1) and Article 6(3) of the ECHR. We note that, in terms of the European Court of Human Rights jurisprudence, the Decree is covered by the fair trial guarantees of Article 6, one of the reasons being that the Decree makes it possible that people are sentenced to prison. In the instant cases, the essential principle in this guarantee of fair trial - equality of arms - has allegedly been violated. The defendants in the two cases described above, were subjected to a criminal punishment - prison sentence - without being able to access the minimum rights guaranteed under the ECHR. In particular,

• One defendant was not allowed to have access to a lawyer (contrary to Article 6(3)(c));
• One defendant was not allowed to obtain the attendance and examination
  of witnesses in court (contrary to Article 6(3)(d));
• In both cases, law enforcement officials failed to adequately inform the suspects of the charges against them and have refused to allow the defendants to examine the evidence against them (contrary to Article 6(3)(a)); and

In both cases, defendants did not have adequate time and facilities to prepare their defence - cases have been brought before courts within 12 to 14 hours after the individuals have been charged or summoned to court (contrary to Article 6(3)(b)).

3. The convicted individuals have been denied the right to an effective remedy guaranteed by Article 13 of the ECHR due to the fact that the court decisions under the Decree are not subject to appeal.

4. Finally, according to the testimonies of the Roma, law enforcement officials have used racial epithets against them, an allegation which raises serious concerns that Roma may have suffered unequal treatment in violation of the prohibition of discrimination in Article 14 of the ECHR. Moreover, ERRC and HRP have serious reasons to believe that the Decree has been disproportionately applied to individuals of Romani ethnicity. In confirmation of this allegation, we would like to refer to the data provided by the Regional Directorate of the Ministry of Interior in Pazardjik (Ref. No 25241 from December 8, 2003), according to which for the period between January 1November 25, 2003, out of 11 decisions of the Pazardjik District Court under the Decree, 6 decisions are against individuals who have their residence registered in the all-Romani neighbourhood Iztok of Pazardjik, i.e. individuals who are presumably of Romani ethnicity. According to the same data, out of 24 individuals convicted under the Decree for the same period, 14 are residents of Iztok neighbourhood. According to this data, therefore, about 60% of the decisions of the local court in Pazardjik under the Decree are made against Roma, while the percent of Roma in the local population in Pazardjik does not exceed 6-7%. Such a discrepancy leaves serious doubts that Romani individuals have been subjected to discriminatory law enforcement.

Apart from the concrete human rights violations committed by law enforcement officers against Roma in the course of the enforcement of the Decree on Petty Hooliganism, the Decree itself, as it stands, may not at present be in harmony with even the minimum standards required by the ECHR. Because the Decree specifies the imposition of criminal charges, fair trial guarantees - including those under Article 6 of the ECHR - are engaged. The Decree's current provisions, however, are in noticeable discord with the standards for a fair and public hearing as required by Article 6(1) of the ECHR. For example, the Decree does not stipulate the procedural rights of the defence. According to Article 3 of the Decree, the Ministry of Interior gathers "evidence about the personality of the perpetrator" and "additional evidence". The gathering of evidence is undertaken entirely by the organs of the Ministry of Interior, without any guarantees against abuse. Moreover, the defendant is not able to challenge the evidence against her collected by the Ministry of Interior, nor even to be acquainted with its contents.

Furthermore, it is difficult to see how the Decree guarantees the minimum standards of rights to a person charged with a criminal offence stipulated by Article 6(3) of the ECHR. For example, Article 4 of the Decree provides that based on the protocol submitted by the Ministry of Interior, the local court rules on the case "immediately or within 24 hours". This provision does not meet the standard of an "adequate time" for the defendant to prepare her defence. Article 5 of the Decree does not oblige the court to examine witnesses, and provides that witnesses are called only "when necessary". This provision, therefore, allows for a conviction based solely on materials gathered by the police in the course of investigation. It is difficult to see how, under such a system, the principle of equality of arms is respected.

A different set of problems relates to the Decree's provisions on sentences of imprisonment. The Decree provides that these sentences be carried out in police facilities, rather than within the regular penal system. In many cases, such sentences are served in cells as small as three-square-metres, often located in the basement of a police station, without adequate sunlight. The conditions of a number of such places of detention may amount to a violation of the ban on cruel and degrading treatment or punishment, guaranteed inter alia under Article 3 of the European Convention.

We note that alleged violations of the ECHR by law enforcement officers in the enforcement of the Decree have given rise to at least one application to the European Court of Human Rights, of Ms Tania Borissova, submitted on 5 April 2000. That case is currently pending before the Court.

Honourable Mr Gherdjikov and Mr Saxe-Coburg-Gotha,

The ERRC and the HRP urge you to:

1) Without delay investigate the allegations for human rights violations against the Romani individuals described in this letter and promptly bring to justice law enforcement officials responsible for such violations;

2) Abolish the Decree on Petty Hooliganism and adopt new legislation in conformity with the European Convention on Human Rights;

3) Investigate allegations that individuals of Romani ethnicity have been disproportionately subjected to punishments under the Decree on Petty Hooliganism. Launch a broader investigation into the respect for the human rights of the defendants of Romani ethnicity in the criminal procedure to respond to concerns about discrimination against Roma in the criminal justice system raised by domestic and international organisations.

4) In accordance with the Bulgarian anti-discrimination law and international human rights standards, undertake immediate measures to prevent discriminatory treatment of Roma by law enforcement and judicial officials.

Dimitrina Petrova
Executive Director
ERRC

Emil Cohen
Executive Director
HRP