Perspective Chapter: Serving the Sentence of Imprisonment in Bulgaria – What Changes Are Necessary?

Abstract

Punishment is the most severe form of coercion and, as such, should strike the balance between reasonable restraint and respect for the human dignity and rights of the convict. Questions about the duration of imprisonment are studied on the basis of correctional work with prisoners in three aspects: Conditions of serving the sentence in the context of the prohibition of torture under art. 3 of the European Convention on Human Rights (ECHR); social and educational work with prisoners; problems of resocialization after serving the punishment. The main question is what are the weaknesses in serving the sentence of imprisonment in Bulgaria and what are the opportunities for overcoming them. The comparative analysis includes the criminal legislation of a number of European countries, in particular—minimum and maximum duration of imprisonment, regime of serving the sentence and working with convicted persons in prisons, opportunities for early release and problems of resocialization. The analysis of Bulgarian legislation leads to the conclusion that life imprisonment without any opportunities of substitution should be repealed as an inhuman penalty; conditional sentence and parole should be combined with probation measures in any case and living conditions in prisons should be improved.

1. Introduction

Imprisonment is a punishment, presented in the sanctioning systems of all European countries. It is a legitimate measure of coercion that ensures a fair balance between the protection of society and the need for corrective influence on the convict. Although modern punishment is based on the principles of legality, humanism and proportionality, which guarantee its lawful nature, the line between an expedient measure of state coercion and inhumane and cruel treatment or punishment still remains thin. Proof of this is the case law of the Court in Strasbourg under art. 3 of the European Convention on Human Rights (ECHR), which shows a number of weaknesses in the legal framework of punishments and the conditions for serving sentences restricting the right to liberty.

In this chapter, the term of imprisonment is understood in its broad sense and includes both, life imprisonment and deprivation of liberty for a fixed term. The analysis touches on two main groups of issues. The first is related to the normative existence of punishment—criminal sanction, the legislative framework for its imposition, the possibilities for substitution with a lighter punishment, conditional sentencing and parole. The second concerns the conditions of serving imprisonment sentences. Both issues are dealt with in the context of the States’ obligations under the ECHR and the case law of the Strasbourg Court. This approach is taken because, modern Criminal Law, and in particular, the imposition and conditions of serving a sentence in prisons is directly influenced by the development of the law of the Council of Europe and the ECHR. The European Court of Human Rights’ (ECtHR)’s practice leads to the humanization of punishment, a process that is not yet fully completed.

The aim of the analysis is to examine what the weaknesses of the Bulgarian legal framework and law enforcement of penalties related to imprisonment are and what the possibilities for overcoming them are. The next paragraphs present the sanction system of the Bulgarian Criminal Code, the alternatives of imprisonment and the function of probation measures in the prosses of punishment’s positive impact. Special attention is paid on the living conditions in prisons and some recommendations have been made to improve these conditions.

2. Principle of proportionality: the legal basis for the fairness of punishment and the achievement of its objectives

Theories of the purposes of punishment express public understanding of the nature of punishment and its role in the different stages of society’s development [1, 2]. Depending on the content of the punishment’s aim, these theories can be divided into three main groups: absolute, relative and mixed. Absolute theories are associated with Kant and Hegel’s understanding of the retributive purpose of punishment. They exclude the possibility of setting preventive punishment goals [3]. The undeniable contribution of these theories is that they emphasize the inextricable link between crime and punishment, which underpins modern criminal justice systems. Relative theories deny the retributive purpose of punishment. According to these theories, punishment is a means to achieve preventive goals. A. Feuerbach assumes that general prevention is a priority [3]. Grollman and Liszt put emphasis on the special preventive purpose of punishment [3]. The contribution of relative theories is that they define the protection of society as the main function of punishment. Mixed theories combine the positive moments of both absolute and relative theories. They take retribution not as a goal but as the content of punishment. According to them the retribution is necessary to achieve its preventive goals, but it is not a goal itself [3]. There are also theories that accept the resocialization of the convicted is a punishment goal [4]. This goal is a priority but not at the moment of determination of the punishment. It is a goal in the process of serving the sentence when the main emphasis is placed not so much on the severity of the crime committed, as on the individual characteristics of the convict.

Regardless of the differences between the diverse theories, the principal basis of the differentiation of criminal responsibility and the determination of punishment is the requirement of proportionality between the severity of the crime committed and the severity of the punishment. The principle of proportionality outlines the permissible limits of coercion as a form of lawful impact on the convict. This leads to the concept that the proportionality between crime and punishment is the normative guarantee of the fairness and expediency of punishment.

The principle of proportionality is the basis not only of the domestic Criminal Law of the countries of the European continent. It is also established in the art. 49, para.3 of the Charter of Fundamental Rights of the European Union, serving as a basis for the establishment of the models of sanctions in the EU directives in the field of particularly serious crime within the meaning of Article 83 TFEU. The importance of this principle is also discussed in the case law of the ECtHR. In its judgment in the case of Weeks v. United Kingdom, the Court determines that a penalty which does not correspond to the seriousness of the offence cannot achieve its objectives but it is also a hypothesis of inhuman punishment within the meaning of the ECHR [5]. However, in the prosses of serving the sentence, the personality of convict and human dignity have a central place. It is a necessary condition for the positive impact of the penalty and resocialization.

The penalties provided for in national law contain a presumption of proportionality. This presumption is rebuttable. If the offense committed is lighter than the minimum penalty provided, the court may punish the offender more lightly (art. 55 of Bulgarian Criminal Code). However, the opposite is inadmissible—the court is forbidden to impose a more severe than the prescribed punishment, because this would directly violate the principle of legality of the punishment. This issue is particularly sensitive when it comes to the punishment of life imprisonment. Establishing life imprisonment as the only punishment turns the sanction into an absolutely defined, without any possibility of individual assessment of the case. This approach is inhumane, and it raises the question of alternatives to life imprisonment, which will be discussed in the next paragraph.

3. Legal framework of life imprisonment: alternatives and possibility of substitution

3.1 Nature and states’ positive obligations in the light of the ECHR

Life imprisonment is, by its nature, an indefinite deprivation of liberty. It is provided for in the art. 77 (b) of the Rome Statute of the International Criminal Court with regard to the most serious international crimes against peace and humanity, but also in the national laws of the majority of European countries. In few countries like Portugal, Spain and Norway, life imprisonment is forbidden [6]. The anticipation of this punishment in the sanctioning systems of the States cannot be assessed unilaterally. At the present stage of the development of legal systems (which are the legal reflection of public consciousness and morality), life imprisonment is still perceived as a necessity for the protection of the public interest and cannot be completely denied. Consequently, the ECtHR does not express a strong view in its case-law that life imprisonment is itself a form of cruel and inhuman punishment [7, 8]. However, the Court emphasizes the obligation on States to provide alternatives for the imposition of that penalty, as well as legal mechanisms for its replacement [5, 7, 8].

3.2 Alternatives to the life imprisonment

Life imprisonment (with and without parole) is established as a punishment that is imposed only for an extremely serious crime. Even the very requirement of “extreme severity” case (relevant to the specific act, not to the type of crime) imposes an inference of the need for an alternative punishment. In most European countries, life imprisonment is provided for in a complex sanction, along with long-term imprisonment. This is a guarantee that the life imprisonment will be imposed after the individual assessment of the severity of the crime and the personality of the perpetrator, and not solely in view of the type of crime committed.

The need to establish alternatives to life imprisonment is also justified by the prohibitions on its imposition introduced in national legislation. They are mostly related to the young age of the offender. In Bulgaria, the age limit is 20 years, in Germany, Spain, the Netherlands and Slovenia it is 21 years [6]. In some countries, women are prohibited from life imprisonment, while others prohibit such punishment for women who were pregnant when committing the crime or sentencing [6].

3.3 Legal opportunities for replacing of the life imprisonment

In the case of a life sentence, States are required to ensure that the legislation provides for the possibility of parole after serving a sufficient period during which the convicted person has shown good behavior. It is the possibility of substitution that distinguishes life imprisonment from cruel and inhumane punishment within the meaning of Article 3 of the ECHR. In its case-law on this issue, the Court is consistent. In its judgment in the case of Yorgov v. Bulgaria [9], the Court held that the life sentence without any possibilities of substitution, is an inhuman and degrading punishment. In Winger and Others v. United Kingdom, the Grand Chamber stated that a sentence of life imprisonment may remain compatible with art. 3 of the Convention only if there is a prospect of exemption and the possibility of revision [10].

In most European countries, life imprisonment could be replaced after a certain period of serving. A differentiated approach has been established in France. People sentenced to life imprisonment can be released early after 18 years of serving the sentence, and for repeat offenders this period is 22 years. In Germany, the minimum term of life imprisonment is 15 years in jail. The convicts can then be released. This period in Denmark is 12 years, and in Poland—25 years [11]. According to art. 38a, para 3 of Bulgarian Criminal Code, life imprisonment (when it is entitled to substitution) could be replaced with 30 years deprivation of liberty only if the convict has served 20 years. Despite the differences in the length of the term, the possibility of early release gives this punishment a humane character. The goals of general prevention are combined with those of the special one, not denying the possibility of correcting and socializing the convict.

In some countries, life imprisonment is a penalty without the right of substitution [12]. In Bulgaria, it has two alternatives, with and without right of substitution. It is imposed as an exception when the crime is assessed as extremely serious (an assessment that the court makes and when it imposes a sentence of life imprisonment with the right of substitution) but also when the court concludes that the objectives of punishment cannot be achieved by the imposition of a lighter punishment (art.38, para.1 of Criminal Code). This legislative decision has come under sharp criticism in Criminal Law theory [13]. It deserves support for the understanding that the activity of determining the punishment is predictive and there is no way for the court to initially conclude that after 10 or 20 years spent in prison, the convict will not have corrected himself. Moreover, if we accept the thesis that there are persons, who are not subject to any impact, it means to assume that educational and correctional work in places of imprisonment is initially unsuccessful. And such a position does not correspond to the potential of punishment to have a corrective effect.

In its judgment [9], the Strasburg Court held that in the Bulgarian legislation the possibility of replacing life imprisonment (when imposed without the right of substitution) is provided for through the institution of pardon by the President. However, in scientific circles and among Human Rights Organizations, pardon is not perceived as a reliable institute, providing clear rules for the replacement of life imprisonment. Support deserves the argument for establishing statutory options for replacing life imprisonment in judicial proceedings with the possibility of judicial review. Such a legislative change is necessary not only to guarantee the rights of convicts. It is also necessary from the society point of view, as it would provide clear rules under which only persons who have been successfully repaired can benefit from a second chance to return to society. Currently, although the issues of correcting the perpetrator are the subject of discussion in the Commission on Pardons, leaving this issue solely within the competence of the presidential institution does not provide clear mechanisms establishing when a person sentenced to life imprisonment without substitution can be released.

It can be briefly summarized that at present life imprisonment is a punishment whose social significance cannot be ignored, but in its alternative “without the right of substitution” it is a form of inhuman treatment and cruelty that dooms the individual to degradation and hopelessness. We can believe that the development of the Strasburg Court’s case-law and its influence on national criminal laws in the not-too-distant future will lead to the abolition of the possibility of this penalty being imposed “without substitution.”

4. Regulations of term imprisonment: alternative measures of impact

The term of imprisonment varies from country to country. In Bulgaria, imprisonment is from 3 months to 20 years (art. 39, para.1 of Criminal Code). As an exception, it may last up to 30 years, in exchange for life imprisonment, multiple crimes and some very serious crimes (art. 39, para. 2 of Criminal Code). The minimum terms of imprisonment are also different. For example, in Spain, it is 3 months, and a penalty below this period is necessarily replaced by another, lighter punishment. Analogous to the Criminal Laws of most European states, Bulgarian law also establishes possibilities for an alternative [14]. When short-term, the sentence of imprisonment is provided for alternatively to probation (which has a dual nature of an independent punishment and of a measure of supervision and impact in the probation period of the conditional sentence and parole). The other possible alternative to short-term imprisonment is the fine.

In cases where the Bulgarian court imposes a sentence of imprisonment of up to 3 years, the institute of conditional sentence is applicable, but only if the offender has not been convicted and the objectives of the punishment can be achieved without serving the sentence effectively. A comparative analysis of the other European countries legislation shows that the institute is applicable to not very serious offenses where the punishment is up to 3 years’ imprisonment. This is the maximum term of the sentence in Portugal, Belgium, Austria. In France, the term is 5 years, and in England, the possibility of applying conditional sentencing is not tied to a maximum term of imprisonment, which is understandable in view of the well-developed probation system. In all countries, conditional sentencing is linked to both a certain probationary period and measures of influence by the public authorities during this period [13]. In Bulgaria, the court sets a probation period of between three and 5 years (art. 66, para. 1 of Criminal Code). If the convicted person commits another intentional crime within this period, he/she also serves the suspended one (art. 68, para. 1 of Criminal Code).

According to art. 67, para. 3 of Bulgarian Criminal Code, there is a possibility to impose probation measures during the probationary period to control and influence convicts (which corresponds to the dual nature of probation both to an independent punishment and to a measure that is imposed within the probationary period). These measures are six: compulsory registration at a current address; mandatory probation meetings with a probation officer; restrictions on free movement; inclusion in vocational training courses and public impact programs; correctional labor and unpaid wort in the society benefit. The Bulgarian Criminal Law theory criticizes the dual nature of probation, arguing that probation measures should be imposed only within the probation period of those sentenced to imprisonment but not a separate penalty [13]. But this is not the most important issue. Unfortunately, according to the current legislation, the court has the possibility, but not the obligation, to impose a probation measure during the probationary period. Thus, in practice, in a number of cases, the application of conditional sentencing is not accompanied by any mechanisms for influencing convicts. It is anchored solely in the warning that if the person commits another crime during the probationary period, he will also serve the suspended sentence. Distancing of the state institutions from active re-educational impact on conditionally sentenced cannot be justified. Along with the warning impact of the probationary period, serious correction work with the conditionally sentenced is also necessary. This will reduce the risk of recidivism and will help to building a positive attitude toward a legitimate lifestyle. The establishment of mandatory probation measures within the probationary period fully corresponds to the concept that the special preventive purpose of punishment is a priority in the cases of conditional sentencing. The content of this goal, however, includes not only a warning impact (achievable through the threat if the convicted commits another crime during the probation period to serve the postponed one) but also a corrective and educational impact that requires active corrective action by the state.

5. Serving custodial sentences in the context of Art. 3 ECHR

5.1 General information on custodial sentences in Bulgaria and other EU countries

According to data of the National Statistical Institute for the 2015–2021 period the number of prisoners per 100,000 population in Bulgaria is—10,286 in 2015; 10,267 persons in 2016; 9840 persons in 2017; 9434 persons in 2018; 9211 persons in 2019; 8992 persons in 2020; 8491 in 2021. The top places in the number of prisoners per 100,000 population are Lithuania with 25,177 persons in 2015, gradually decreasing to 18,192 in 2021 and Latvia with 22,199 persons in 2015 compared to 16,813 persons in 2021. The fewest prisoners per 100,000 population are in Denmark (5659 in 2015, but there has been some growth, with the number of prisoners reaching 7229 persons in 2021) and Finland—5775 prisoners per 100,000 for 2015, which decreased to 5080 for 2021. The number of persons is also low in Sweden—5839 persons per 100,000 population in 2015, with a display of up to 7492 persons in 2021. In 2021, the prisoners in Bulgaria were 5873, compared to 7408 prisoners in 2015 and 9493 persons in 2012. The largest number of prisoners were in France—69,448 for 2021 compared to 66,678 persons in 2015, but it makes 10,265 persons per 100,000 persons in 2021 compared to 10,029 persons per 100,000 people in 2015 [15].

In Bulgaria, in 2022, three persons were sentenced to life imprisonment, there were no sentenced to life imprisonment without substitution. Imprisonment occupies the main place among the imposed punishments—19,706 convicted or 81.9% of all sentences are imprisonment [15]. An effective prison sentence was imposed on 9247 persons, or 32.6% of the total number of defendants; and 14,800 persons (52.1%) were sentenced on probation. The most are the persons sentenced to up to 6 months imprisonment (effective or conditional). Their number is 10,826. Those sentenced to imprisonment from 6 months to 1 year are 6024; between one and 3 years of imprisonment is awarded to 2548 persons. The number of persons sentenced to a longer term of imprisonment drastically decreases—for a period of between 3 and 4 years—132 persons, for a period of between 4 and 5 years—55 persons, between 5 and 10 years—83 persons, between 10 and 15 years—17 persons, from 15 to 20 years—19 persons and between 20 and 30 years (in exchange for life imprisonment or a set of crimes)—2 persons [15]. This data points to the prevailing imposition of the prison sentence in Bulgaria. In view of the statistical data, the trend of applying the institute of conditional sentence is positive. But this trend cannot be assessed separately by the general concept of the place of imprisonment in the sanction system. Countries that traditionally impose a sentence of imprisonment for short periods are Sweden and Norway. The opposite approach is adopted in Germany, where this punishment cannot be less than 6 months and is mainly applied to serious crimes, as an exceptional measure [16]. In Bulgaria, it is perceived that short-term imprisonment has more disadvantages than advantages. On the one hand, it isolates the convict from his social environment, and on the other—short period does not allow enough correctional and educational work in prison. Based on this understanding, in 2002, the sanction system introduced the punishment of probation as an alternative to imprisonment. However, data show that the most numerous are people sentenced to imprisonment of up to 6 months, including conditionally sentenced persons. This, on an autonomous basis, necessitates the establishment of compulsory probation measures during the probationary period in case of conditional sentencing.

5.2 Socio-living conditions in prisons

Serving the sentence of imprisonment requires measures for individual impact on the personality of the convicted persons and support the process of their resocialization. In order for this impact to be successful, the necessary social and living conditions shall be provided in prisons first. On the contrary, the lack of these conditions means lack of guaranties that the convicts will be treated with dignity, which is an obstacle for the positive effect of the punishment and a violation under art. 3 of ECHR.

The ECtHR’s practice under Article 3 of the ECHR related to poor prison conditions is rich. Too little space in the cells, lack of ventilation and sufficient lighting give grounds to the Strasbourg court to consider that there has been a breach of the positive obligation of the State under Article 3 of the ECHR: “While there is no evidence that there was a positive intention of humiliating or debasing the applicant, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3, and the fact that the authorities have taken no steps to improve the objectively unacceptable conditions of the applicant’s detention denotes a lack of respect. The conditions complained of diminished his human dignity and created feelings of anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical or moral resistance. In sum, the conditions of the applicant’s detention in the segregation unit amounted to degrading treatment” [17]. Poor material conditions are also discussed in the case of Harakchiev and Tolumov v. Bulgaria, but in its judgment in this case, the ECtHR also focused on the complete isolation in which the convicts were placed and which had a detrimental effect on the individual. The court rightly emphasized: “However, it cannot be overlooked that national standards for the treatment of those sentenced to life imprisonment … seem to be aimed at helping those sentenced to life in prison to adapt to their sentences rather than work towards their correction… These standards do not clarify whether positive changes in sentences to life imprisonment should result from their own efforts or from a proactive approach by prison authorities” [18]. In its pilot decision on the case Neshkov and others v Bulgaria, ECtHR pointed out the poor conditions of prisons in Bulgaria as a structural problem that is the basis of the violation under Art. 3 of the ECHR [19]. Since this pilot decision, a number of legislative and practical changes have been undertaken aimed at improving the conditions in the places of imprisonment in Bulgaria. Art. 43, para. 4 of Law on enforcement of sentences and detention was adopted, which requires a minimum of 4 square meters. This directly affects the overcrowding in places of imprisonment, which is clearly gradually declining. According to the “Analysis of the practical changes in the places of imprisonment”. After the pilot decision of the ECtHR in the case “Neshkov and Others v. Bulgaria,” it is indicated that for the period from 2020 to the present a number of repairs have been carried out in the places of imprisonment, which improves the material conditions. This indicates efforts by the State to provide conditions for a dignified stay in prisons. At the same time, a problem with bedbugs and cockroaches in places of imprisonment, insufficiently provided hygiene materials, limited opportunities for sports activities and training were found [20]. Weaknesses in the medical care of prisoners were also found [20], which led to an increase in death cases. The analysis states that: “Despite the decreasing number of residents in penitentiary institutions, death cases have been rising in recent years…” [20]. The number of these cases is 55 prisoners in 2021, the highest number since 2003 [20].

Another problem found is that the Bulgarian penitentiary system does not meet the special needs of prisoners who belong to vulnerable groups, including people with disabilities and drug addicts. In addition to all other difficulties related to infrastructure and the necessary medical care, prisoners with disabilities are deprived of the opportunity to work, which means that they cannot reduce the amount of their punishment by working [20]. This is an example of less favorable treatment of these persons which is discriminatory and contrary to the constitutional principle of equality of all citizens before the law.

Another alarming statistic is the increase in drug addicts, and even more disturbing is the finding that these individuals are viewed primarily through the primacy of order and discipline in prisons, and not as people in need of treatment and rehabilitation [20].

These facts show that despite efforts for improvement the living conditions of prisoners, there is still much to be desired. In turn, providing a good environment is a necessary condition for successful social work with prisoners.

6. Early release (parole) from serving the sentence of imprisonment

The theory determines that parole has three objectives: convict’s rehabilitation while he is in prison; conditional liberation; further development of that rehabilitation in a state of controlled freedom [21]. The parole is a traditional and widespread in Europe. In all European countries, it is associated with a certain period of effective imprisonment. In English criminal law, this period is two-thirds of the total penalty. In France, a differentiated approach is established—one-half of the part of the sentence served, and in cases of recidivism—two-thirds. Serving this period is not enough. The convicted person must have given evidence of his correction. In Germany, the term of the sentence served is two-thirds but not less than 2 months, when the imprisonment is short-term and the convicted person has given evidence of correction. Where the sentence imposed is up to 2 years’ imprisonment and is not for relapse, the term of serving is one-half but not less than 6 months [13].

Bulgaria early release is permissible after serving half of the sentence of imprisonment. The term is one-third for minors and two-thirds for repeat offenders. In addition to the expiry of the term, the convicted person must have given evidence that conduct has been corrected in places of imprisonment, which is proof that the objectives of the punishment have been achieved. Upon parole, a probationary period is established for the convict, equal to the unserved part of the custodial sentence. Within this period, but not for more than 3 years, the court may determine one of the following four probation measures: compulsory registration at a current address; mandatory probation meetings with a probation officer; restrictions on free movement; inclusion in vocational training courses and public impact programmes. If, during the probationary period, the person commits an intentional crime punishable by deprivation of liberty or fails to comply with the probation measure imposed, he/she shall serve the remainder of the custodial sentence. Analogous to parole, in early release the court has the possibility, but not a duty, to impose probation during the probationary period, and should choose only one measure from the four alternative probation measures. Although according to Art. 73, para 1 of the Criminal Code, the court assigns the organization of supervision and educational care for the early dismissed to monitoring commissions, commissions for combating anti-social behavior of minors, territorial structures of the Ministry of Labour and Social Policy, civil and religious associations and non-governmental organizations, failure to implement the educational measures does not lead to sanctioning consequences, which indicates a deficit in the supervisory functions of these institutions [22]. This is the biggest weakness in the legal framework of parole in Bulgaria, as it directly affects the process of resocialization of convicted persons. Therefore, in addition to a future legislative change obliging the court to impose probation measure within the probationary period, more serious regulatory and organizational efforts should be made for active supervisory and educational work with convicted persons, to support their re-socialization.

7. Conclusion

Imprisonment must guarantee both the interests of society and those sentenced to liberty. This balance is ensured by the principle of proportionality between the type of crime and the penalties provided for them and in the determination of the sentence by the court. In the process of serving the sentence, the emphasis is placed on the personality of the convicted person and the objectives of special prevention and resocialization. But the public interest is also guaranteed by the success of the educative impact on convicts, which leads to a decrease in recidivism. Therefore, Bulgarian legislation should establish credible mechanisms aimed at correcting convicted persons. First of all, this applies to the punishment of life imprisonment without the right of substitution, which should be abolished. With regard to the penalty of life imprisonment, substitution options should be established. Next, in the case of conditional sentencing, the court must necessarily order probation measures to ensure that the state makes the necessary efforts to correct the convicts. This conclusion is also valid with respect to the probationary period of early release. It means that Bulgarian Criminal Code should provide for widen options for releasement, but stronger control measures during the probatory period. Third, places of imprisonment in Bulgaria must provide the necessary living conditions for prisoners, including persons with disabilities and drug addicts as a base of the correctional work. It could be achieved not only by legislative changes but also by organizational ones.