Rights in Exile Programme

Refugee Legal Aid Information for Lawyers Representing Refugees Globally

Bulgaria LGBTI Resources

(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)

 

National Law

Many of Bulgaria’s national laws stem from the country’s accession to the European Union. Despite same-sex relations being legal in Bulgaria since 1968, the LGBTI community may face legal challenges that others do not.

In 2006, changes to the Bulgarian criminal code furthered legal support for LGBTI persons. The age of consent in Bulgaria is 14 regardless of sexual orientation.

Article 157 of the criminal code covers non-consensual same-sex conduct. Article 157 (1) through (5) deems it illegal for any person to perform sexual intercourse or acts of sexual satisfaction using threats or force and/or taking advantage of a position of dependency, with the punishment of imprisonment for two to eight years. Article 157 also includes provisions for same-sex acts performed on those under the age of 14.

Article 152 covers opposite sex rape, the punishment being deprivation of liberty for three to ten years if conducted with a woman under the age of 18. The punishment for non-consensual same-sex intercourse/sexual acts under the age of 14 is limited to three to twelve years; however the provisions do not extend to perpetrators under 18. Over the age of 14 non-consensual same-sex acts are punished by two to six years deprivation of liberty. This may suggest a wider legal scope when the law is applied to non-consensual opposite-sex crimes under the Bulgarian criminal code.

Article 31 of the Bulgarian Constitution (2007) states 'Everyone shall be entitled to personal freedom and inviolability.' The applicability of this to LGBTI persons is covered in the state’s capacity to protect section of this report.

Article 27 (2) of the constitution recognises asylum status for 'foreigners persecuted for their opinions or activity in the defence of internationally recognised rights and freedoms.'’

Article 46 (1) covers the right to marriage, defined as a ‘free union between a man and a woman. Only a civil marriage shall be legal.’ This clearly eliminates the possibility of same-sex marriage. There is also no specific legislative act provided for trans people, which means that individuals whose self-identified gender does not align with the gender assigned at birth are faced with the unpredictability of court proceedings.

Bulgaria has taken the initiative to expand their anti-discrimination legislation by providing LGBTI protection within the workplace. Bulgaria is a unitary state where the Constitution and ratified international instruments are directly enforceable by the general courts. Therefore, the European Union and its directives have been implemented in some form. For example, Bulgaria adopted the Protection Against Discrimination Act in 2004. Article 4 of the act includes the prohibition of discrimination based on sexual orientation.

However, since hate crimes committed with homophobic and transphobic motives were not defined in law as constituting hate crimes, they could not be persecuted or punished as such, as reported by Amnesty International.

As for transgender persons in Bulgaria, there is only one law which mentions sex-reassignment; the person has to apply for new documents within 30 days of the surgery. (Law for Bulgarian Documents 2007, Article 9). The Bulgarian Military and Ministry of Defense considers transsexuality to be a sexual disorder, making Trans persons 'unfit' for service. This does not extend to homosexuals.

There is no legal definition of the concept of transsexuality in any Bulgarian law. Bulgarian legislation also lacks any regulations and procedures concerning the establishment of the status of a person who wishes to undergo sex reassignment surgery or hormonal treatment to that effect. Bulgarian law does not prohibit hormonal treatment and surgery with the aim of sex reassignment. Anti-discrimination law is not specific concerning transgender people, giving no indication as to whether discrimination against them is to be considered on sexual orientation grounds or on grounds of gender. As a result, transgender people are insufficiently protected under Bulgarian anti-discrimination law.

Bulgarian law has allowed for EU nationals to enter the member state as members of a same-sex couple, if recognized in their country of origin, and reside there as such. (Entry, Residence and exit of EU Citizens and Accompanying Members of their Families Act 2007) However, non-EU individuals residing in Bulgaria are limited to opposite-sex partners. (Act on Foreigners in the Republic of Bulgaria Act 2007)

International Law

Bulgaria has been a member state of the European Union since January 2007. In order to accede to the EU, Bulgaria was required to remove discriminatory legislation, such as the unequal age of consent for same-sex and opposite sex couples. Upon accepting the anti-discrimination rules within the EU, Bulgaria continued the acquis communitaire.

 As a member of the EU, Bulgaria is subject to the Charter of Fundamental Rights. Article 21 suggests: 'Any discrimination based on any ground such as sex … or sexual orientation shall be prohibited.' The removal of discriminatory legislation in a short period of time for the accession of Bulgaria into the EU may suggest this was not a change in public opinion.

The Act Against Discrimination (Equality Directive 2000/78/EC) is inclusive of sexual orientation. Article 1 of the directive states: 'The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.' As a member of the EU, Bulgaria must abide by this nationally.

Bulgaria established a specialised single equality authority, the Комисията за защита от дискриминация (КЗД) [Protection Against Discrimination Commission (PADC)], with a mandate to provide protection on all grounds uniformly, including sexual orientation.

Under Council Directive 2004/83/EC, Apr. 29, 2004, sexual orientation may, depending on the circumstances of the country of origin, provide the basis for an asylum claim based on persecution based on membership in a particular social group. As of 2008, no Member 'ha[d] explicitly refused to consider sexual orientation as a source of persecution for the purposes of granting refugee status.'

The United Nations High Commissioner for Refugees (UNHCR) has made it clear that LGBT individuals are members of a particular social group. The Council of Europe concurs in this interpretation. According to the Treaty on the functioning of the European Union’s Protocol on asylum for nationals of Member States of the European Union, Member States of the EU shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters. Accordingly, any application for asylum made by a Member State national is not normally taken into consideration.

Article 10 (1) (d) of the EU Qualification Directive was adopted (Directive 2004/83/EC of 29 April 2004) and states that 'depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. [.....] Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this Article.' In 2011 this was amended to include gender. The second part of the relevant text of Article 10(1)(d) of the Directive now reads as follows: 'Gender related aspects, including gender identity, shall be given due consideration for the purposes of determining membership of a particular social group or identifying a characteristic of such a group.' As a member of the EU, Bulgaria is to implement this into legislation and apply it as and when asylum cases arise.

 

CASE LAW

In the case of Ilyar Ayeti v Dimitar Spasof, a gay man of Albanian ethnic origin was detained by the police in the early hours of 24 October 2005, in the street near a night club frequented by LGBT patrons. One of the policemen allegedly used offensive language with respect to the complainant’s ethnicity and sexual orientation. The complainant was later detained for 12 hours. He alleged that he was beaten and verbally assaulted while in detention, although these allegations of ill-treatment are unsubstantiated.

In the 2005 case of Queer Foundation et al v Sofia University an NGO and affected individuals alleged that members of a non-incorporated gay sports club were banned from access to the Sofia University sauna by a doorman on explicitly homophobic grounds. An activist from the claimant NGO later sought an explanation from the university rector, who openly supported the ban on explicitly homophobic grounds. Threatened with legal action by the activist, the rector issued a formal ban ostensibly barring all non-students and non-faculty members from access to the facility. Situational testing, however, revealed that other non-university parties were freely admitted, while members of the gay club were not. In court, the claimant NGO alleged the impugned ban constituted direct discrimination based on sexual orientation. The court declared the ban on admission to the sauna to be an act of direct discrimination based on sexual orientation, for which the university was liable. The court confirmed the standing for public interest NGOs to bring lawsuits in their own capacity, as well as in support and on behalf of victims.

An application in 2008 was rejected on the basis that the applicant’s allegations of persecution were not regarded as credible. However, the Supreme Administrative Court’s decision did acknowledge in principle that 'sexual orientation could constitute a ground for persecution' under the Geneva Convention’s definition of refugee. According to the FRA’s report, in practice only opposite-sex unmarried partners have qualified for derivative refugee status.

Research published in 2011 found that asylum claims only reach authorities in the Central and Eastern Europe (CEE) occasionally. The Fleeing Homophobia project of COC Netherlands and VU University Amsterdam found that since 1997 the average number of claims on this ground per year is two in Bulgaria, three or four in the Czech Republic, five or six in Hungary, two or three in Poland and three in Lithuania. In comparison, there were 1,100 LGBTI asylum claims considered between 2008 and 2010 in Belgium. However, there are no official data since the CEE countries do not keep separate statistics on LGBTI claims, let alone disaggregate the statistics with respect to lesbian, gay, bisexual, transgender or intersex status.

There are several examples of Bulgaria using ‘discretion reasoning’. This is when countries refuse refugee status arguing that the applicant can be 'discreet' about their sexual orientation in their country of origin and not risk persecution.

In various European countries, medical examinations (psychiatric examinations, physical response to pornographic images, i.e., the so- called 'phallometric testing') are used in order to establish whether or not the applicant is an LGBTI person. Examples of examinations performed by psychologists, psychiatrists and sexologists to assess someone’s sexual orientation were reported in 8 countries including Bulgaria.

The Forced Migration Review in 2013 claimed that in Bulgaria the marital or parental status of LGBTI applicants is sufficient to deny granting refugee protection. Bulgarian asylum authorities also ask intrusive questions concerning the number of sex partners, favourite sexual positions or sexual contacts. There have also been reports of asylum seekers being assessed in a 'discussion' with psychologists, using the expert’s opinion to determine the credibility of the applicant. A prevalent method may include asking sexually explicit questions

In Bulgaria, according to country experts, anyone who does not fit the stereotypes for LGBs is considered not to be credible. Marriage and children are considered to be among the main indicators for the assessment of sexual orientation. There was a case of a bisexual man from Lebanon being rejected because he had a wife and children. A common opinion in Bulgaria is that a gay man should necessarily 'look feminine' and 'display' his sexual orientation; the same applies to homosexual women.

 

PUBLIC ATTITUDES AND/ OR STATE’S CAPACITY TO PROTECT

Sofia Pride is the largest annual human rights event in Bulgaria and the LGBTI community’s most important visibility raising initiative. According to the organisers, the vast majority of non-heterosexual and transgender people have faced discriminatory treatment at school and university. However, this problem remains invisible, unacknowledged and unaddressed by parents, teachers, researchers and other education experts.

In 2012 the European Union’s Fundamental Rights Agency (FRA) conducted the largest study in Europe on LGBT people’s perceptions of discrimination. Some of the main findings derived from 1,034 respondents from Bulgaria are as follows:

· 71% of LGBT people answered 'always' or 'often' when asked whether they were in the closet while in school before the age of 18;

· 72% indicated 'always' or 'often' to have experienced negative comments or conduct at school because they were LGBT; and

· 95% of those surveyed have witnessed derogatory comments and abuse against a schoolmate or teacher who was perceived to be LGBT.

'Schools and universities are places where people actively socialize and spend a large portion of their time daily,' notes Monika Pisankaneva, chairperson of Bilitis Resource Center Foundation. 'That is why educational institutions need to be safe and inclusive. By being inclusive, students will feel comfortable and welcomed. Since people who do not feel complete or accepted do not interact well with peers and educators, the alienation will prevent them from realizing their full potentials.'

'The problem is not specific to Bulgaria,' says Radoslav Stoyanov, an expert on LGBTI issues at the Bulgarian Helsinki Committee, the largest human rights organization in Bulgaria. 'Data shows that Bulgaria is above the average for European Union countries in terms of school victimization of LGBTI people. The big difference between Bulgaria and most other EU countries is the level of recognition, analysis, and prevention of the problem. Unfortunately, Bulgarian professionals in the field of social welfare or social sciences are not well prepared with expert knowledge on marginalized communities. The issue of the LGBTI population is an exotic concept to them.'

According to Stoyanov, universities and colleges in Bulgaria often omit diversity issues from their curricula, which leads to the lack of human resources capable of working on these issues.

Marko Markov, chairperson of the LGBT youth association 'Deystvie', notes that many young people who have reached out to the organization have shared their stories of suffering and harassment. 'LGBT youth often hide their sexuality from their families. And when they don’t, they are often subjected to verbal, psychological or even physical abuse at home.'

In 2013, an LGBT film festival taking place in Bulgaria’s second largest city, Plovdiv, was disrupted by soccer hooligans reporting the festival as 'gay propaganda.' The response from the mayor of the city was not to defend LGBT rights, but a statement that he was 'opposed to all events that divide the city of Plovdiv.' Reportedly police did not intervene until day five of the festival, when protest signs and equipment were destroyed, and one protester assaulted.

Amnesty International has documented many cases of LGBTI individuals who have been violently targeted because of their real or perceived sexual orientation or gender identity in Bulgaria. In Bulgaria, hate crimes against LGBTI individuals—including beatings, rape and murders—remain inadequately investigated and prosecuted.

Victims of these crimes are selected by the perpetrators on the basis of a real or perceived identity-related characteristic such as sexual orientation or gender identity.

Despite Bulgaria’s obligations under international and regional human rights standards to combat all forms of discrimination, the domestic framework is currently ineffective in tackling homophobic and transphobic hate crimes. The current Bulgarian Criminal Code does not explicitly mention protected characteristics such as sexual orientation, gender identity or disability as grounds on which hate crimes may be perpetrated. At best, homophobic and transphobic hate crimes can be prosecuted as crimes committed on the basis of “hooliganism.” However, the discriminatory aspect of these crimes, which sets them apart from common crimes, is ignored.

A process aimed at revising the Criminal Code is ongoing. The latest draft includes “sexual orientation,” but not gender identity or disability, among the protected grounds of discrimination on which a hate crime can be perpetrated. A petition has been launched to call on the Minister of Justice to take immediate action to secure the protection of LGBTI individuals against hate-motivated violence and discrimination.

Despite the legalization of homosexuality in 2007, there is still much opposition. In 2014, the National Assembly voted against the discriminatory bill a nationalist group (Ataka) proposed. The party leader, Volen Siderov, proposed a prison sentence of one to five years and fines of 5000 to 10 000 leva for anyone who “publicly manifests his or other homosexual orientation or identity through an organisation or participation in rallies, processions and parades or through the mass media and the internet.” Bulgarian parliamentary committee on human rights chairperson Tuncher Kardzhaliev stated: “I suggest that the MPs of Ataka expand [their] vision because even if we want the world to stand still, it keeps on going forward.”

Amnesty International describes Bulgaria as constantly failing to 'adequately investigate homophobic and transphobic hate crimes.' This can be seen in the case of Mahail Stayanov, killed in Sofia by attackers who believed he was a homosexual. This murder took place in 2008 and has still not been resolved. In 2013, the Bulgarian Helsinki Committee and Amnesty International sent a letter to the case’s Prosecutor, Mr. Dragomir Yanchev, urging him to reopen the investigation so that those guilty of the murder could be brought to justice. Because of gaps in the law, in August 2013 the Sofia City Prosecution Office pressed charges for murder motivated by 'hooliganism,' not discrimination. The Prosecutor told Amnesty International: 'The law is limited and that’s why I could not take into account the homophobic motive in the indictment.'

Amnesty International’s most recent report indicates that Bulgaria still has gaps in the law when it comes to investigating hate crimes toward minority groups, including sexual minorities. The proposed amendments to the Criminal Code that would address these gaps have still not been enacted.

In 2010, a case brought before the Sofia City court (Bulgaria/Софийски градскисъд [Sofia City Court], decision (01.09.2009), civil case No 285/2007) held that homophobic statements constituted neither harassment, nor incitement to discriminate. The statements were made by Siderov, head of the right-wing Ataka party mentioned above.

The Bulgarian Supreme Administrative Court has upheld protection for LGBTI communities. In 2011 the chair of the city council in Pazardzhik (Georgi Yordanov) asked for a repeal of the May 2010 ruling of the Commission for Protection against Discrimination against the municipal ordinance that banned displays of sexuality in public. The Supreme Court argued that this was a case of discrimination based on sexual orientation and refused the appeal.

Refworld’s 2013 Annual Review of the Human Rights Situation of Lesbian, Gay, Bisexual, Trans and Intersex People stated: '[T]ransgender individuals face additional discrimination and are attacked more frequently than LGB people. In some instances, police have reportedly refused to investigate violence against trans people.'

The report pointed to statistics that reflect the Bulgarian public’s attitude towards LGBT people. According to Eurobarometer 2012, 20% of Bulgarians believe sexual orientation discrimination is widespread. This is significantly less than the EU27 average (46%). Fewer (16%) believe that gender identity discrimination is widespread.

Bulgarians scored 3.7 on a scale from 1 ('totally uncomfortable') to 10 ('totally comfortable') when asked how comfortable they would feel with an LGB individual in the highest elected political position in their country. The EU27 average is (6.6). Bulgarians scored 3.4 on a similar scale when asked about their comfort level with a transgender/transsexual person in the highest elected political position in their country. This is significantly below the EU27 average (5.7).

 

NON-GOVERNMENTAL ORGANIZATIONS (NGOs)

We do not currently list any LGBTI NGOs in Italy, but we welcome suggestions.

 

COUNTRY OF ORIGIN SPECIALISTS

We do not currently list a specialist on LGBTI issues in Bulgaria, but we welcome suggestions.

 

Researched by: Jessica Sweet

Email: jessicajanesweetatgmail [dot] com 

 

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