JURIST Guest Columnist Stoyan Panov of the University College Freiburg [German] briefly discusses the criminalization of crimes against humanity in Bulgaria …

In early May 2015 a group of 12 MPs in Bulgaria proposed an amendment bill [Bulgarian] to the Criminal Code of the Republic of Bulgaria with the purpose to introduce domestic criminalization of crimes against humanity such as murder, extermination, enslavement, deportation or forcible transfer of population, torture, persecution and enforced disappearance, which would be particularly relevant for eventual prosecutions of former Communist officials pertaining to crimes committed during the Communist regime between 1944 and 1989. The bill aims at eliminating the existing contradiction between declaring that prosecution and punishment of crimes against humanity are not time-barred by a statute of limitation and the fact that codification and definition of crimes against humanity in domestic legislation have been absent.

Proposal for Criminalization of Crimes against Humanity

The bill introduces the definition of the crimes against humanity in Part IV of the Criminal Code under proposed Articles 418a and 418b. This is the most important aspect of the bill regarding crimes against humanity. It should be noted that currently the Criminal Code contains provisions for crimes against the peace, war crimes and crimes against the customs of war, genocide and apartheid, but not a separate, specific codification for crimes against humanity (see ICRC). This deficiency must be corrected in order to abide by various international obligations to prevent, prosecute and punish such crimes.

The proposed section on crimes against humanity follows verbatim the language of Article 7(1) of the Rome Statute [PDF]. In this manner, the new Article 418b will contain the most relevant contemporary definition of crimes against humanity. The bill introduces criminalization of an act, defined as a crime against the peace or a crime against humanity in international treaties, which are in force for the Republic of Bulgaria. The domestic criminalization of crimes against humanity will fill the existing gap for effective national prosecution, thus making the fulfillment of the obligation to prosecute and punish such crimes more adequate. The alternative approach towards prosecution and punishment of crimes against humanity as ordinary crimes under domestic law may be not sufficient, because such a method would not fully reflect the seriousness, nature and uniqueness of international crimes. Additionally, procedural obstacles such as the application of statute of limitation on domestic level hinder the fulfillment of the obligation to prosecute core crimes including crimes against humanity. Legislation with express definition of what constitutes crimes against humanity ensures proper prosecution and respect for the rights of the potential defendants as reliance on international custom pertaining to crimes against humanity in civil law states such as Bulgaria has been problematic in light of the applicability of the legality principle. The codification ensures that the state will be able to uphold its customary and conventional obligation to prosecute crimes against humanity.

According to Article 79(2) of the Criminal Code, the statute of limitation is not applicable to crimes against peace and crimes against humanity. The bill affirms the non-applicability of the statute of limitation to such crimes as it contains a section on the non-applicability of the statute of limitation to the said crimes, which applies retroactively to discontinued or suspended trials on the grounds of the statute of limitation defense. The proposed amendment additionally introduces an explicit clause that excludes the application of the statute of limitation to a group of crimes, classified as “grave crimes against human rights” pertaining to crimes against the person, civil rights crimes and crimes against the family and youth perpetrated between September 9, 1944 and November 10, 1989 by officials of the Bulgarian Communist Party as well as third persons with delegated official or party functions.

Reasons for the Proposed Amendment to the Criminal Code

The proposed amendment attempts to respond to a problematic decision by the Supreme Court of Cassation of July 2002 in which the court terminated the criminal proceedings of the so-called “Communist Camps” trials, based on statute of limitation for the alleged crimes. The court took a narrow procedural interpretation instead of substantively addressing the alleged acts as crimes against humanity during the Communist regime. The confounding situation arose since the alleged crimes were not categorized as crimes against humanity because the Criminal Code did not proscribe crimes against humanity.

The introduction of specific clauses excluding the applicability of the statute of limitation to core crimes of international law and providing the definitions of crimes against humanity is the correct approach, because the current situation indicates partial criminalization or related legislation, but no per se crimes against humanity national legislation. The legal system is facing a confounding situation in which there has been an imprescriptibility of international crimes without providing actual definition of the crimes in the Criminal Code.

Hence, several reasons could be outlined for the proposed amendment. First, Bulgaria is a State party to the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. Article 4 of the 1968 Convention requires Bulgaria as a State Party to “adopt, in accordance with their respective constitutional processes, any legislative or other measures necessary to ensure that statutory or other limitations shall not apply to the prosecution and punishment of the crimes [against humanity] and that, where they exist, such limitations shall be abolished.” The temporal scope of the obligation under the 1968 Convention is clear: the retroactive application is affirmed in Article 1 of the 1968 Convention which stipulates that “no statutory limitations shall apply to the following crimes, irrespective of the date of their commission.” Hence, the Convention applies retroactively before its entry into force for each State Party. Second, the Constitution of the Republic of Bulgaria contains a clause in Article 31(7) which states that statutory limitation for prosecution and punishment is inapplicable to war crimes and crimes against humanity. Third, the scope of the crimes against humanity in the amendment is codified to mirror the definition of the Rome Statute. In this manner, the bill aims at closing the loopholes in the domestic legal order pertaining to crimes against humanity from substantive and procedural points in order to ascertain that Bulgaria meets its responsibility to prevent and punish crimes against humanity.

Statute of Limitation and Crimes against Humanity

The main criticism of the proposed legislation pertains to the non-applicability of the statute of limitation to crimes against humanity, but it is unsubstantiated. The requirements of the 1968 Convention are primarily procedural as regards the non-applicability of the statute of limitation to core crimes of international law. The purpose of the proposed amendment is not to revive stale claims and create injustice. To the contrary, the bill aims at closing the impunity gap for crimes perpetrated during the Communist regime which have not been subject to any effective prosecutions so far. In this manner, the state will oblige to its international duty to submit such cases for the purpose of prosecution.

The passage of time is still recent for the alleged atrocities, and reliable and complete evidence is also available. In this manner, the amendment would not violate Bulgaria’s ECHR obligation either, as prosecution of crimes against humanity was decided to be non-time barred by statute of limitations in the Touvier v France. The court found that crimes against humanity were imprescriptible as they fell under the exception of Article 7(2) of the ECHR.

The issue of retroactivity is also mentioned as an eventual predicament for prosecution of the acts perpetrated in the period of 1944-1989. However, there is a strong indication that the alleged acts committed by officials of the Communist regime, especially in the concentration camps including murder and torture, in persecutorial state policies or in deportation or forcible transfer of population, may constitute crimes against humanity at the time of their commission, and the lack of criminalization could not be used as a reason to circumvent the applicability of Article 15(2) of the ICCPR and international obligation to prosecute such crimes since international law does not prevent “the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.” The non-applicability of statute of limitation for crimes against humanity is a well-established norm of international law and statutory limitations should not be abused as a bar to prosecution and punishment if a prosecutorial action is not commenced in timely manner due to imprecise domestic provisions. The principles of legal certainty, foreseeability and predictability will not be breached as the Bulgarian government envisaged as early as 1965 that prosecution was not time-barred for crimes against humanity in passing a Decree on the non-applicability of statute of limitation to crimes against the peace, crimes against humanity, war crimes, Nazi and Fascist crime. As long as the alleged criminal activity constitutes a crime against humanity, the issues of retroactivity or statutory limitations should not be applicable or problematic.

Stoyan Panov is a Lecturer of International Law at the University College Freiburg, Albert-Ludwigs-University Freiburg.

Suggested citation: Stoyan Panov, There is Still Time: Crimes Against Humanity in Bulgaria’s Domestic Legal Order, JURIST – Academic Commentary, June 3, 2015, http://jurist.org/academic/2015/06/stoyan-panov-crimes-against-humanity.