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Bulgarian populists are pushing through dangerous legislation

Blaga Thavard

The United Patriots, the junior coalition of Bulgarian Prime Minister Boyko Borissov, initiated legislation aimed, according to critics, to permit unpunished murder in case of self-defence. The amendments were passed in Parliament at first reading on 8 May without any vote against or abstention. The opposition BSP and the Movement of Rights and Freedoms (DPS) didn’t attend. The second reading is expected after the European elections. Blaga Thavard offers a legal analysis of the controversial legal amendments.

Blaga THAVARD is attorney at law, Sofia Bar, lawyer at Pappas & Associates, Brussels.

Populists often pretend to give voice to the silent majority, speaking of inequalities and rigged games. Recently, the United Patriots put forward the issue of domestic crimes, offering simple answers to difficult questions.

The proposed amendment to the criminal law states that there is no exceedance of the inevitable defence, when “the attack is committed by illegal entry into a dwelling” and when “the attack is directed against the life, health, freedom or sexual integrity of the defending person or the other, two or more persons, by an armed person or at night”. In these cases, citizens will not be criminally liable for their actions, whatever they may be, including lethal force.

These new propositions, adopted at first reading by the Parliament, demonstrate how populism is currently threatening the rule of law. Moreover, they represent an admission by the State of its weakness and inability to cope with the problem, leaving it up to citizens themselves to deal with criminals, instead of relying on the state capacity in the field – the police, prosecutor’s office and Courts. This constitutes a true recipe for more cynicism in political propaganda and more polarization in society, less trust in institutions and less trust in each other.

It seems hard not to conclude that these modifications could not withstand the test of time and remain “as is” in the Penal Code if they are finally adopted, due to their poor quality.

The above mentioned proposals are indeed in contradiction with the superior legislation on both European and national levels. The texts are first inconsistent with the article 2 of the European convention on human rights and the practice of ECtHR protecting the right to life, as well as incompatible with Bulgarian Constitution. They are indeed creating a legal opportunity to hurt an assailant with unreasonable force, including deadly force, in a manner which significantly and clearly exceeds the need for protection required.  Therefore, nothing could be further from the legal essence of the inevitable defence concept and it is obviously worrying that the promoters of these suggestions probably expect nothing more than getting political dividends instead of providing real protection to the citizens.

In other words, it must be strongly stated and reminded that the inevitable defence is not a right to unrestrictedly and unlimitedly hurt the assailant. This concept is on the contrary a delicate balance between the protection of the person attacked which should be excused for its action taken to defend itself and the necessary protection of the offender which despite the offense remains both a citizen and a human being and retains the rights and protection attached to it, based around the idea of proportionality of the riposte to the attack. It is not surprising that almost the same provisions in article 12 of the Penal Code were already declared unconstitutional by the Decision No 19/ 21.11.1997 of the Bulgarian Constitutional Court. As it was stated at the time, these provisions allow and justify, under certain circumstances, murder or attempted murder, which exceeds the limits of the legitimate self-preservation.

In most countries, as for instance in France or in Belgium, this balance has been calibrated by establishing a set of circumstances, precise and legally defined in which the proportionality of the defence is presumed. Usually these presumptions involve defending oneself in its home, place of business or against armed robbery. Importantly, however, these legal presumptions can be rebutted by the prosecution by a preponderance of the evidence—and it’s not at all unusual that such presumptions are in fact overcome.

What the United Patriots proposed is not to integrate these kinds of presumption in the legislation, but simply to give a blank check to unrestrictedly and unlimitedly harm an assailant to repel an attack, whatever the intensity of the response would be.

Of course, the domestic crime issue cannot be defeated with a law which, as the Parliament is probably aware, is unconstitutional. However, while lawyers, judges and politicians can see how this bill will not stand the test of time, citizens should be entitled to be told the truth and to have confidence in the law adopted by their representatives.

One can only guess if it is blatant incompetence or shameless attempt to succeed in pleasing the electorate of some parties, but one thing is crystal clear – this creates a dangerous vicious circle of more disappointed citizens with ever more firebrand populism as a result.

As economic difficulties persist, and become deeply felt by Bulgarians, populism will be generating greater challenges for the State, posing as the genuine popular will. The example of Victor Orban’s Hungary aiming to build an ‘illiberal state’ in contrast to the ‘failed liberal Western system’ is striking. Bad example is always contagious.

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