SPECIAL RULES FOR EXAMINATION OF CASES FOR CRIMES COMMITTED BY UNDERAGE PERSONS

1. GENERAL PROVISIONS Penally responsible is the person who has completed 18 years of age. A minor – a person who has completed 14 years of age, but has not completed 18 years of age is penally responsible if he was able to understand the nature and meaning of the act and to manage his/her actions.

2. SPECIAL RULES FOR UNDERAGE PERSONS

With respect to an underage person who has committed a crime carried away by circumstances or because of thoughtlessness, which does not constitute great social danger, the prosecutor may decide to abstain from instigating pre-trial proceedings or to terminate the instigated proceedings, and the court may decide not to have him brought to court or not to have him tried, provided with regard to him educative measures can successfully be applied pursuant to the Control of Juvenile Anti-Social Behaviour Act.

Therefore, on one hand in regards the underage person who has committed a crime, we can have either a diversion from punishment (see previous paragraph) or reduction (or substitution) of the punishment pursuant to art. 63 of the Criminal Code.

In the first instance the proceedings will develop according to the Juvenile Anti-Social Behaviour Act, in the second according to the special rules established in the Criminal Procedures Code.

2.2 JUVENILE ANTI-SOCIAL BEHAVIOUR ACT

Certain concerns have been raised regarding this act as it has not been seriously amended since 1958.

Main concerns are connecting with the fact that the law imposes punitive measures and offers no special protection to children in conflict with the law. The law also provides that some punitive measures are imposed for actions for which a penally responsible person does not bear criminal liability. Under Bulgarian law, children in conflict with the law are placed in institution-like detention centres called Social-Pedagogical Schools where they are being systematically abused. The Ministry of Justice has initiated changes in regards the said act which concern adoption of a new act: “Law of diversion from criminal proceedings and imposing disciplinary measures for minors”, the procedure for which implementation is not yet finalized.

2.3 SPECIAL RULES FOR EXAMINATION OF CASES FOR CRIMES COMMITTED BY UNDERAGE PERSONS

A. In cases for crimes committed by underage persons, pre-trial proceedings shall be conducted by appointed investigative bodies with appropriate training.

NB! As the function of the pre-trial phase is to prepare the trial phase, the breach of this rule is not considered substantial breach of procedural rules.

B. The jury must be teachers or educators.

NB! Only the jury, not the judge.

C. The court hearing in cases against underage persons shall be conducted behind closed doors, unless the court finds it in the interest of the public to examine the case at an open court hearing. If the court finds it in the interest of the public to examine the case at an open court hearing, the court should provide specific and elaborate reasoning for that.

D. By discretion of the court, an inspector from the child pedagogical facility and a representative of the educational establishment in which the underage person studies may be invited to the court hearing.
These representatives cannot participate in the process in any way.

E. The parents or guardians of underage persons shall be summoned to the hearings of cases against them. They shall have the right to take part in the collection and verification of evidentiary materials and to make requests, remarks and objections.

Failure of the parents or guardians to appear is not an obstacle to the examination of the case, unless the court finds that their participation is necessary.

The failure to fulfil its obligation to summon the parents or guardians of the underage persons is substantial breach of procedural rights, but not an absolute one, meaning that not in any case it shall lead to quashing the judgement.

F. Participation of the defense counsel in criminal proceedings shall be mandatory where the accused party is underage.

If in the course of the course proceedings the accused party comes of age, the participation of defense counsel is no longer mandatory.

G. Where necessary, in the interrogation of an underage accused party a pedagogue or a psychologist shall participate, who may ask questions with the permission of the investigative body. The pedagogue or psychologist shall have the right to familiarize themselves with the record of interrogation and to make remarks on the accuracy or completeness of matters recorded therein.

The pedagogue or psychologist can support the court but they cannot be questioned as witnesses at a later stage.

H. In cases against underage persons, the participation of a prosecutor shall be mandatory. In these cases, no private prosecutors shall participate.

 

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