Desislava Atanasova, who stepped in a few days ago as a constitutional judge and until recently head of the GERB parliamentary group, received her first case as a reporter. It is at the request of Pleven District Court judge Vladislava Tsarigradska, who is among the judges – victims of pressure from the murdered Martin Bojanov – the Notary.
Tsarigradska disputes three provisions of the Criminal Procedure Code, which refer to the conclusion of an agreement during the pre-trial proceedings, “Lex” reports.
Art. 381, para. 2 provides that “an agreement shall not be permitted for serious premeditated crimes under Chapter One, Chapter Two, Sections I and VIII, Chapter Eight, Section IV, Chapter Eleven, Section V, Chapter Twelve, Chapter Thirteen, Sections VI and VII, and under Chapter fourteenth of the special part of the Penal Code. An agreement is also not allowed for any other crime that causes death.” The next paragraph reads: “When property damage is caused by the crime, the agreement is allowed after their recovery or security.” And Art. 382, para. 3 of the Civil Procedure Code stipulates that the prosecutor, defense counsel and the accused participate in the meeting at which the court approves the agreement.
Tsarigradska is the second judge to appeal to the Constitutional Court, after the changes in the Constitution came into force, with which all judges, not only the supreme ones, received the opportunity to submit requests for the unconstitutionality of the law applicable to the case.
The cases for which Judge Tsarigradska attacked the three provisions in the Criminal Code are about human trafficking for the purpose of prostitution. The district prosecutor’s office in Pleven has filed a plea deal in court, proposing that a defendant be sentenced to two years in prison for seven cases of trafficking women to Germany for the purpose of prostitution. He was also charged with being a leader and accomplice with seven other people in an organized criminal group.
For each of these acts, the prosecutor’s office proposes a two-year prison sentence, and the defendant is assigned a total sentence of two years of imprisonment. An agreement was reached not to impose the cumulative penalty of a fine provided for each case of trafficking.
In the district court in Pleven, an agreement was also filed against another member of the group, for whom it was also agreed to serve a total of two years on charges of participation in the organized crime group and human trafficking for the purpose of prostitution.
Before ruling on the agreements, Tsarigradska decided to turn to the Constitutional Court. In her request, she states that she finds the current regulations in the Criminal Code problematic from the point of view of the rights of victims of human trafficking. And he outlined it through the provisions of the legislation.
First, crimes under the chapter “Trafficking in persons” of the special part of the Criminal Code can be resolved by agreement.
Second, with Interpretive Decision No. 2/2016, the Criminal Board of the Supreme Court accepted that the requirement of Art. 381, para. 3 of the Code of Civil Procedure for the recovery or provision of property damages before the conclusion of an agreement applies only to compensatory damages.
Third, a plea agreement may impose a prison sentence below the minimum and not impose the cumulative penalty of a fine absent exceptional or numerous mitigating circumstances.
And lastly, when an agreement is concluded in the pre-trial phase, the will of the victim is irrelevant, unlike the agreement in the judicial phase of the process.
In detailed reasons, in which she refers to international acts and the practice of the European Court of Human Rights (ECHR), Judge Tsarigradska explains the negative effect for the protection of the rights of victims of trafficking from the application of the provisions of the Criminal Procedure Code she contested.
By not providing for the victim to participate in the process of approving the agreement, according to her, the equality between the parties is violated, as “without a legitimately defensible reason, the victim is eliminated as a subject of the process.”
“In this way, he is practically deprived of access to court. At the same time, if the agreement to resolve the case is reached in the judicial phase, then the victim, if he has asked to participate as a party, will have the opportunity to express his opinion, which will be binding, because the lack of consent on his part is an obstacle to resolve the case under the differentiated procedure,” she explains.
In her request, Tsarigradska points out that the legislator has excluded the victim from the group of persons whose consent is necessary to resolve the case by agreement, for reasons of ensuring the maximum speed of the criminal proceedings. And it states that this legislative decision “finds no legitimate justification, but appears to grant unjustified tolerance to the accused and his counsel.” “Besides affecting the interests of the victim, this way the constitutional authority under Art. 117, para. 1 KRB of the court to equally protect the rights of all citizens – both the accused and the victims,” the judge wrote.
According to her, the conclusion that the procedural regulation contradicts the Constitution is strengthened when, in addition to the impossibility of the victims to participate in the procedure before the court when the case is settled by agreement, the impossibility of compensating them before the conclusion of the settlement for the property losses suffered by them is added. harm. Here the problem, as it became clear, stems from the mandatory interpretation of the Supreme Court, according to which it allows the settlement of the case with an agreement without all the property damages suffered by the victims of human trafficking having been recovered.
Tsarigradska states that this is in clear contradiction with the requirement of Art. 4, para, 2 of the Constitution – the state must guarantee the life, dignity and rights of the individual and create conditions for the free development of man and civil society, as well as provide an effective legal remedy for the protection of these victims, according to the constitutional requirement of Art. 56 of the Constitution.
“Human dignity is a universal value underlying the idea of human rights, which position is clearly and categorically expressed in the Preamble of the Constitution of the Republic of Bulgaria. Therefore, as a basic principle in Art. 4, para. 2 of the CRC establishes the reciprocal obligation for the Republic of Bulgaria to guarantee the life, dignity and rights of the individual,” she points out.
Tsarigradska recalls the decision of the ECHR in the case “Krachunova v. Bulgaria”, according to which the court in Strasbourg accepted that Bulgaria violated the prohibition of slavery and forced labor by denying a victim of trafficking compensation for the property damage caused to her by the trafficker who received her income earned from her sexual exploitation. “Investigating and punishing traffickers is essential, but it cannot erase the material damage suffered by victims. The opportunity for them to receive their lost income could be seen as a kind of full compensation for the harm of the crime, which would provide them with the financial means to rebuild their lives, protect their dignity and reduce the risks of becoming a victim of trafficking again “, emphasized the ECHR.
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2024-02-09 20:04:00
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