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There Is Nothing Child-Friendly in the Child-Friendly Justice

28 June 2022

This material was written by the journalist Dorotea Dachkova from www.segabg.com and was published from here without changes.


If the government does not grant real care to the child perpetrators, who very often are victims, as well, it “raises” serious criminals. 

 

If the government does not grant real care to the child perpetrators, who very often are victims, as well, it “raises” serious criminals.

He is 14 years old. Let’s suppose his name’s Georgi. He has to face court for stealing. Georgi steals food. He has been living on the streets for 2 years now because one of his parents is in jail for killing the other parent. For two years, none of the institutions understand that this child is at risk and cannot even secure himself nourishment. Georgi was not sentenced. The court found the case unimportant and referred to the social workers. Georgi goes to an orphanage. At the end of the day, he gets his life together.

Another scenario. With Ivan, let’s say. The local commission against the antisocial behavior of minors and juveniles considers a correctional case against a child who is aggressive against his father and his classmates. Before the case, none of the institutions had paid attention that this child was a victim of abuse. Everyone in the chain neglected the case as an inevitable one, and no measures could help him. However, the commission announces him as a child at risk and suggests the social workers help Ivan and bring him to a crisis center. Nonprofit organizations try to work with his family, but they have no success. Far from his family, Ivan becomes “normal” and shows no antisocial behavior.

These stories illustrate the importance of cases being researched and evaluated as a whole and the fact that in Bulgaria, children at risk are not ascertained on time. And this results in problems. All of this roots back to the beliefs of the social environment. Children are not seen as individuals with rights and personal will, but as objects that must be forced back on track. From this perspective, inspectors, judges, and prosecutors, who are wasting their time with child-friendly interrogations and hearings, look soft and increase the problems. “And I can hear them whispering behind my back down the hallway:

If this judge takes the small hooligan home,

she will see what it is like,” says a district court judge, who took part in the Bulgarian Center for Not-for-Profit Law research Can Justice in Bulgaria Be Child-Friendly?. The concerning conclusions reached by the report published a year ago, are that in most cases, the government cannot build the capacity to address the specific needs and rights of children, directives are superficially transposed, children's rights in criminal justice remain an unclear concept, and the largest deficiencies are registered at pre-litigation procedures when the police and prosecutors are leading. 

 

A bit over 10 years ago, when the specialized courts were being created, many specialists were insisting that if there is a specialized court, it must not be organized crime and corruption based, but juvenile crime oriented. For years, UNICEF suggested this change in Bulgarian legislation. Because if the government does not grant real care to the child perpetrators, who very often are victims, as well, it “raises” big criminals. In fact, for a long time now, youth courts have been a topic. They are being mentioned in conceptions and strategies. And that is where they remain.

In the “Justice” unit in the coalition agreement, there is not a word about youth courts or magistrates’ specialization in work with children. And now, criminal laws outline particular rules for these cases. However, it is debatable if the magistrates are trained enough for cases against children or such where children are victims or witnesses. The investigators, the prosecution office, and the court need to have

special knowledge, skills, and approach to working with children.

According to the Penal Procedure, a criminally responsible person is a sane adult not less than 18 years of age, who commits a crime. Minors, who are at least 14 years old, but not 18 yet, are criminally responsible if they could understand the nature and significance of their acts, and control their behavior. The Procedure has special rules for them. If needed, minors who cannot be considered culpable for their acts can be put in a correctional educational institution or another applicable establishment. (The fact that the correctional educational institutions in Bulgaria do not meet any modern criteria or standards and can be easily compared to prisons is a whole other topic. Also, an issue is whether the faculty is educated and trained enough, and whether it can have an educational impact on children, who at the end of the day, are learning from the set example.)

If a prosecutor finds that the minor has committed the crime due to frivolity, and it is not of a big public danger, they may not make a lawsuit and send the administrative file to the local commission against antisocial behavior of minors and juveniles. The court can take measures according to the Anti-Juvenile Delinquency Act and just inform the commission.

Minors cannot be sentenced to life imprisonment, fines, or confiscation. Article 63 from the Penal Procedure regulates how the sentence for minors changes. When the sentence is less than a year and is conditional, the minor is released from it, and the court puts them in a correctional educational institution or imposes another educational measure.

There are particular rules in the Code of Criminal Procedure. Cases are observed closed to the public, and teachers or pedagogical assistants, for example, need to be the jury. However, if the minor has an adult complicit, the case follows the general order. 

 

The Anti-Juvenile Delinquency Act, which was already mentioned, came into force in 1958, 10 years before the Penal Procedure, which we use to this day. Just like the Penal Procedure, the Anti-Juvenile Delinquency Act was amended a lot. However, the result is not satisfactory.

From its title, Anti-Act, it appears that it does not provide any specific prevention measures.

In practice, it deals with registering the antisocial act that was done and with the procedure of imposing an educational measure. Its most significant weakness is the lack of a clear definition of “antisocial act”. The law generally states that an antisocial act is an act that is dangerous for society and contradicts the rule of law or morality.

Under the Anti-Juvenile Delinquency Act, commissions, children's pedagogical rooms, social-pedagogical boarding schools, correctional educational institutions, minor and juvenile temporary housing, and centers for homeless children have been created.

Law treats children from their 8 years of age. The central commission against the antisocial behavior of minors and juveniles is a part of the Council of Ministers, and it consists of representatives of the executive and judicial powers.

In this law, the repressive method bears the greater weight. It reaches so far that exactly based on it, children, who are not judged by the Penal Procedure, have to face more serious punishment. The measures in it are 13 and are related to either obligations or bans. They start with a warning and an obligation to apologize to the victim and get farther to placement in a correctional educational institution. The placement in such is a result of a suggestion of the commission and a decision by the district court. The imposition of the other measures is also appealed there.

Another problem with the Anti-Juvenile Delinquency Act is that the number of members of the local commission, which observes the case, and what majority is needed to make a decision are not regulated. No protocols which reflect all investigative measures are prepared, but often marking the present members and done work, without strictly plotting the explanations and testimony given at questioning is found as enough. That is why the decisions of the commissions are not motivated. All of the drawbacks of the procedure and neglecting it by the commissions make judicial control impossible. And the court, which is the second instance for the acts of the commissions, has the right to collect only new evidence.

This is what Tanya Radulovska shared for “Sega” years ago when she was a judge. She is now a lawyer and chairs one of the local commissions in Sofia, always devoted to the cause for children. 

 

“The Anti-Juvenile Delinquency Act had to be canceled a while ago; it is morally outdated.

Neither the procedure nor its measures are adequate.

It would be hard to find an adequate measure for our current public relations,” Radulovska said for “Sega” today. She reminds us that there is a draft of the Law for Children, which has been worked on for at least 15 years, and it has never reached plenary. The idea of this law is to codify the regulations of the protection measures and the measures in case of antisocial behavior. Because many times a protection measure is needed. But just like Child Protection and the local commissions, the institutions prior to court, do not have the power to apply both laws at once, the court cannot impose protection if it is referred to for sanction. This is one of the most significant disadvantages, Radulova shares.

She believes that the social services do not do their work, and the weakest unit in the whole work with children chain is the Child Protection department of the Social Assistance Agency. “Maybe, they are not well personally secured, and there are not enough social workers. Maybe, there is incompetency to a big extent. Even as a judge, I had noticed that the social files are formal, superficial, and do not present the individual child in depth. In tough cases, they are completely inadequate. They do not know their own laws and regulations, which they have to work on, so not much is left regarding the European standards, directives, and regiments,” says Radulovska.

Two key EU directives: for the rights of victims of crime, as well as for procedural guarantees for children, are not well implemented in the Bulgarian legislation. Radulovska gives an example: The only change that was made was in the Code of Criminal Procedure about the hearings of children. The main idea is that children are being questioned just once in order to avoid their secondary victimization. However, the norm in the Code of Criminal Procedure is not designed to exclude subsequent interrogation, as it is not provided that this single interrogation is conducted in front of a judge and after the accused has been brought in so that he can participate and follow the right to Protection. The ex-judge believes that the rules of the directives are not known well enough by interrogators, prosecutors, and judges. And if there are specialized magistrates, they work with child perpetrators, rather than with child victims. “The quality of justice is falling drastically, especially at low stages. If there are no obligatory norms, there would hardly be any improvement,” she shares.

Vladislava Tsarigradska from the Lukovit district court agrees that the good practices are isolated cases and are not encouraged.

In her opinion, children, especially those who have done antisocial activities, become hot potatoes that no one wants to deal with. She cites the implementation of the judicial reform strategy analysis, which concludes that there is

zero progress on juvenile justice activities.

Tsarigradska thinks that the big issue is in the almost complete abdication of the Social Assistance Agency, whose Child Protection Departments should act in any case of a child at risk. She gives an example: an official statement of the local Social Assistance Directorate that nothing can be done for a child who is homeless and lives in poverty and who is registered with a number of antisocial acts. “When Protection does not work, failure is 99% sure,” claims the judge. In order for us to make a change, children need to be seen as a resource for society's future.

Tsarigradska emphasizes that in Bulgaria, children do not receive a multidisciplinary assessment, information is not gathered, and children’s acts are observed only in context. She illustrates her opinion with a hypothetical scenario. A minor without a driving license causes a car crash and runs from the police. At first look, the child can easily stay under arrest. However, if you look in-depth, and not simply on the surface of the iceberg, we can see that he has lived in the USA, where he was allowed to drive a car. Apart from that, he had just become a witness to police brutality against his father, so he had run away in panic.

The judge tells another scenario - this time, a real one, about a boy detained by the first instance court for threatening to kill his mother. However, the mother appears for the second instance and tells about her dramatic divorce, which has impacted the child very badly. He started abusing drugs. She tried to get him out of this atmosphere, but she had no success. She looked for help from the school and the social services. At the end of the day, she was given the advice to refer to the prosecution and ask for compulsory treatment under the Health Law. Instead, however, the prosecution filed a murder threat case.

"Instead of defending my child, they made me stand up to him,"

the mother cries in the court. The magistrates sign specific social measures, which would apply immediately and help the mother and child.

 

In Bulgaria, the current legislation does not meet the established international criteria and standards for the protection of the rights of the child, namely that justice should be in line with the interests of the child, as the Ombudsman Diana Kovacheva recently wrote to the Minister of Justice Nadezhda Yordanova. “Today, Bulgaria continues to be strongly criticized for the lack of reforms in the field of juvenile justice. In its educational impact, the juvenile justice system is conservative, built on an outdated and long-rejected understanding of the legal status of children in conflict with the law,” Kovacheva points out and reminds us about the two EU directives, which need to be transposed in Bulgarian legislation to guarantee justice in line with the rights and interests of children.

Kovacheva also pleads for the closing of correctional educational institutions, where children's childhood is spent behind bars. "Sega" asked for a comment from the Ministry of Justice, but no response was given.

 

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