Increased sanctions for sexual offences against juveniles, reduced sanctions for possesing small quantities of illegal drugs, money laundering, tightened penalties for offences against the taxation system and tougher steps against commercial distribution of pirate products are among proposed changes to Bulgaria’s Penal Code.
On June 29, the parliamentary committee on legislation approved the first reading of these amendments to the Penal Code. They were proposed by four MPs from the three parties in the ruling coalition - Maya Manolova and Nadka Baleva from the Bulgarian Socialist Party, Yani Yanev from the National Movement Simeon II, and Hristo Biserov from the Movement for Rights and Freedoms.
A new Penal Code was adopted by Parliament several months ago but it was not welcomed by the European Commission, which advised Bulgaria to change it again in view of the country’s accession to the European Union, provisionally scheduled for January 1 2007.
The Government reacted rapidly, tabling the new amendments in Parliament a month ago. However, many MPs, including some from the ruling coalition, criticised the move, describing it as illogical from a legal point of view. This made it no surprise when, on May 25, the parliamentary committee on legislation rejected the proposals. This time time around, the picture is different. On June 29, all of the MPs supported the amendments, even those made by the opposition. The amendments are expected to be adopted by Parliament by the end of July.
The Sofia Echo spoke to Manolova about what exactly the changes mean and how they differ from the amen proposed by the Government.
“The amendments which came from the Government lacked a clear concept about the sanctions’ policy of the code, especially in reducing the so-called legal repression, because sanctions in Bulgaria are one of the severest in Europe,” Manolova said.
She said that the penal sanctions for some crimes should be reduced. “I am, of course, not talking about crimes against the person. I am talking about crimes against property with lower level of public risk”. One of the problems of the current Penal Code was that there were clauses in it that had not been well thought out.
“That is why, when a court is trying to impose a fair and adequate sentence, it has to avoid some of the clauses in the Penal Code,” Manolova said. This was a direct result of the numerous amendments which had been made to the Penal Code over the years, which had deprived it of a clear structure and concept. One of the amendments proposed by Manolova and her colleagues is meant to deal with this problem.
Currently, if a person is caught with even a single dose of drugs, he or she might face imprisonment from 10 to 15 years or fine between 100 000 to 500 000 leva which “in any sense is not appropriate” Manolova says. That is why, in line with the EU’s acquis, the amendments rescind the severe sanctions for the possession of small quantities of drugs by drug addicts. Under the new provision, the court will impose a fine. If the accused is proven to be a drug dealer or producer of large quantities of drugs, he would be prosecuted with the full force of the law and might face up to 12 years in prison. What can be described as revolutionary here is that that the amendments suggest a distinction for different kinds of drug. “We define low risk and high risk drugs and different sanctions respectively,” Manolova said.
This amendment was required by the EC, together with an amendment providing for increased sanctions – up to 10 years in jail - for sexual offences against juveniles, Manolova says. Another change will be a reduction in the penalty for theft, for which the code currently provides up to 30 years in prison.
“There is no logic in having such strict and severe sanctions for relatively mild crimes and having lesser sanctions for murder, for example” Manolova says. The changes envisage a replacement of the penalty sanction with administrative one, because “you cannot compare a crime against property with a crime against a person” Manolova says.
The offences against the taxation system is Manolova’s pet subject – she is a tax lawyer.
“We are trying to stop Value Added Tax (VAT) fraud with these amendments. I personally insisted on including them in the changes” she says. VAT fraud had drained millions of leva from the state budget, she said. Right now the most popular method of VAT fraud is when a company has to pay a lot of money to the state from VAT, it simply transfers its ownership to another person or company and that way it manges to avoid the payment to the budget, Manolova says. According to the amendments, doing this will attract sanctions from three to eight years in prison or confiscation of property. “It is very easy to identify when such transfer of ownership is made for such purposes,” Manolova said when asked about the exact procedure.
Another new aspect for legal practice in Bulgaria is that, according to the changes, in cases when the state budget is deprived of a considerable amount of money and during the trial the money or part of it is returned by the accused, he or she would receive benevolent treatment from the court. In this case the accused will face no more than three years in prison or just an administrative sanction. “In this way, we want to stimulate tax collection,” Manolova says.
As for the sensitive topic of intellectual rights the Manolova has something to offer as well. According to her people who store on their personal computers movies, music or software, downloaded from the internet will no longer be considered criminals as is the case in the current Penal Code. Only those who use pirated production “for large-scale trade” will be subject to sanctions.
“This way the law would not prosecute people who have downloaded an mp3 file or two from the internet, which is something usually done by juveniles,” she says. The amendments to the Penal Code also introduce heftier fines and other penalties for trade in pirate products.
The current punishment of three years imprisonment and fines of 1000 to 3000 leva will be hiked to five years imprisonment and fines from 1000 to 5000 leva. If caught again, perpetrators face five to eight years in jail. Manolova said that various organisations dealing with copyrights had been consulted in order to protect as best as possible the interests of both the owners of the intellectual right and users on the internet.
Copyright is a big issue in Bulgaria because, according to the Special 301 annual report on the adequacy and effectiveness of intellectual property protection, prepared by the US department of commerce, losses from violated copyrights in Bulgaria in 2005 were estimated at $49 million. According to the report, Bulgaria is among the countries of a medium degree of non-observance of copyright protection. However, the country remains outside the priority watch list of the major copyright pirates, that include Russia, Argentina, China, Lebanon, Egypt, Israel, and others.
In May, the Chief Directorate for Combating Organised Crime (CDCOC) arrested people who had been involved in uploading pirated products to Bulgarian web sites. The CDCOC warned at the time that it would do mass check-ups in the homes of internet users for illegal films, music and software. “With this change we hope to end this matter once and for all, and users’ rights would not be threatened, as is the case with the now existing Penal Code”.
One of the latest amendments to the Penal Code, which added storage and sale of pirated CDs and the sale of products with violated copyrights, was made as part of the package of measures, recommended by the Western experts.
They also expect Bulgaria to become more active in applying regulations on the production of CDs. Currently, there are nine CDs production factories in Bulgaria with an annual capacity of 63 million CDs and DVDs.
