The Bulgarian Law on Protection Against Domestic Violence

 

            The Bulgarian Law on Protection against domestic violence entered into force on 2^nd April 2005. The first official inquiry on the domestic violence problems and on this phenomenon as a whole was done in March 2003 when the draft of this law was first taken to the Parliament. According to the latest (second) inquiry of the National Center for Social Opinion Research one year later 20 % of the Bulgarians still don’t know at all about it, another two thirds say they don’t know details about this law and only 14 % say that they are well acquainted with this law. This last group consists mainly of women, people of the age 40 – 59, the higher educated people, the people living in the cities, and the people who are well off. The results show that still 49 % of the people believe that domestic violence is only a personal problem and 51 % are those who understand that it is also a social problem.            

 

            The definition:

            This law gives for the first time in Bulgaria a legal definition of what domestic violence is. According to the Law this is any act of physical, mental or sexual violence and any attempted such violence, as well as the forcible restriction of individual freedom and of privacy, carried out against individuals who have or have had family or kinship ties or cohabit or dwell in the same home.

 

            Although the legal definition covers a wide scope of possible acts of domestic violence in practice there are still a lot of cases where the acts are not recognized as acts of domestic violence. Such examples can be given particularly for psychological forms of domestic violence, stalking, etc. 

 

            The responsibility:

            The Law establishes a new separate kind of liability for the perpetrators of domestic violence which is administrative by nature and is imposed by the civil courts (family courts). The Law deliberately states that liability under this Law shall not preclude the civil and the penal liability of the respondent.

 

            In practice, the survivors of the domestic violence in most cases, even when a crime is committed, would prefer to apply for a Protection Order rather than file a complaint to the police or to the prosecutor. The fear for the personal security is much stronger than the wish to report to the police or to seek compensation for damages.

 

            We don’t have many examples for parallel pending procedures between the same parties for the same act of violence. The only exceptions are the applications for Protection Orders during a pending divorce case between the same parties and even then the relevant act of domestic violence is a new one and different from the facts pointed out by the applicant in the initial application form for the divorce.

 

            The liability is only personal and the whole responsibility for any eventual violation of this order lays only on the perpetrator. The behavior of the survivor can be no excuse for the violation of the Protection Order but in practice the violations will be registered by the police only on the request of the protected person.

 

            The Law does not allow mutual Protection Orders.

           

            The personal scope:

            The protection under this law can be sought by any individual having suffered from domestic violence applied by:

1. a spouse or a former spouse;

2. a person with whom that individual cohabits or has cohabited;

3. a person with whom that individual has a common child;

4. an ascendant;

5. a descendent;

6. a sibling;

7. a relative by affinity up to the second degree;

8. a guardian or a foster parent.

 

            All the measures can be applied to these persons and the law provides no limitations for the responsibility of the perpetrator according to his/her relations with the survivor, ownership of the shared dwelling, physical or mental status, age, etc.

 

            The underage juveniles are also liable but it is a difficulty for the judge to decide which measure is appropriate for such a perpetrator.  In one case where the respondent was 17 years old boy living with his mother who was the applicant was sent to live with the other parent (the parents were divorced for many years).

 

            The measures:

            The Law provides that protection against domestic violence shall be implemented through any of the following measures:

1. placing the respondent under an obligation to refrain from committing domestic violence;
2. removing the respondent from the common dwelling-house for a period specified by the court;
3. prohibiting the respondent from being in the vicinity of the home, the place of work, and the places where the victim has his or her social contacts or recreation, on such terms and conditions and for such a period as specified by the court;
4. temporary relocating the residence of the children with the parent who is the victim or with the parent who has not committed the violent act at issue on such terms and conditions and for such a period as specified by the court, provided that this is not inconsistent with the best interests of the child;

            These four measures are now applied by the courts. They are usually asked for by the applicants and applied by the courts two or three of them together and in most cases the first measure is applied with the others. In some very few cases the first measure is applied separately. The courts are very flexible when determining the terms and conditions for the measures so that they could cover the needs of the applicants for their best protection. Thus, for example, the third measure often states that the respondent is prohibited to get near to the applicant, not closer than 50 m, except in the police and in the courts when they have to participate in the same procedures.

 

            The first measure is imposed with no time limits. The next three measures could be imposed for a period from 1 month up to 1 year. In all the cases there is also a fine – up to 1000 BGN, that is 500 euro or approximately 5 Bulgarian minimum salaries.

 

            The Law provides two more measures which are still not being applied by the court mainly because the respective ministries are not ready with the structures and the conditions for them. These measures are:

5. placing the respondent under the obligation to attend a specialized program;
6. advising the victims to attend recovery programs.

            The expectations are that these two last measures will be applied with the assistance of the NGOs.

 

            Territorial scope:

            The measures are imposed by the competent court – the nearest to the victim or the court before which there is a pending litigation between the victim and the respondent – most often a divorce case, or custody case or a case on parental rights, etc. The experience shows however, that even when there is a pending case between the same parties and an application for a protection order is presented to the same court, the domestic violence case is heard separately and by another judge.

 

            The procedure:

            The proceedings for issuing a protection order may be instituted:

1. on an application by the victim;
2. at the request of the Director of the Social Assistance Directorate (Department for Child Protection);
3. in emergency cases – on the request by a sibling or a relative to  the victim.

      In practice the applications come to the courts directly by the survivors. They are usually very active in the proceedings; they appear personally before the court in most cases with a lawyer, whereas the respondents come with lawyers in approximately 50 % of the cases. This sometimes makes the court more tolerant to the respondent as the judge explains to him all the procedural rights and possibilities.

 

            The most often kind of domestic violence which is brought to the court is the physical violence. In the ¾ of the cases it is committed by a spouse or a partner and the victim is a woman.

 

            The Evidences:

            The Law is the first one in the Bulgarian civil legislation which shifts the burden of proof.

            The Law substantially enlarges the scope of the evidences admissible under the Code of Civil Procedure. It also admits evidences like records, reports, reports, and any other acts issued by the social services, by medical doctors, as well as by psychologists who provided counseling to the victim, documents issued by legal persons providing welfare services;

 

            The Law gives the applicant the possibility to present a declaration on the facts and the circumstances under which the domestic violence occurred and the court is authorized to issue a protection order even if this is the only evidence in the case file. The truth is that we still do not have many such orders.

 

            Every doctor is obliged to issue a medical document certifying the physical harms and damages caused to the survivor and not only the personal GP or the specialized clinics for judicial expertise.

 

            The terms:

            The whole procedure is very short.

            The applicant should file the application not later than a month from the act of the domestic violence. He/she can note however other important facts and circumstances which are relevant and which are older than a month back from the date the application is filed.

            The application is brought to the judge on duty for the day immediately.

            The case is heard not later than a month from the date of the application. In practice this is the first hearing which according to the law is supposed to be also the final one. Usually on some request of the respondent, the case is postponed for another oral hearing. The truth is that the next hearing is usually being set for a very close date. Where necessary, the writ of summons is served with the assistance of the police. 

 

            The orders

            The applicant can ask for an order for protection, and in emergent cases, also for an order for immediate protection.

 

            The later is issued immediately when the applicant presents facts and evidences which reveal direct and impending threat to the life and health of the survivor. This order is issued ex parte and in camera. This order is served to the parties and forwarded to the local police ex officio. The immediate protection order is valid until the judgment on the merits is issued. This order can not be appealed.

 

            The judgment on the merits and the final order may be appealed before the second instance court but the appeal does not stop the execution of the order. The second instance court’ judgment is final. The second instance case should be heard within 14 days.