Migrant Detention Centers and Places of Deprivation of Liberty: a Comparative Analysis of the Legal Framework and Practices in the Republic of Bulgaria

Migrant Detention Centers and Places of Deprivation of Liberty: a Comparative Analysis of the Legal Framework and Practices in the Republic of Bulgaria

Introduction

While the migration detention centers in Bulgaria are established for the sole purpose of returning foreigners residing on the territory of the Republic of Bulgaria without legal grounds, the places of deprivation of liberty are usually used for persons who are accused or convicted of committing crimes.

Historically speaking, the purpose and functions of migrant detention centers and imprisonment facilities differ. However, it is evident that placement in both types of institutions is de facto tantamount to deprivation of liberty. Concerns have been raised regarding conditions in both types of institutions, including overcrowding, poor hygiene conditions, lack of access to legal and medical services and human rights violations. Reports by human rights organizations and institutions point to systemic problems in these facilities, which call for reforms.[1]

Part I – Special Residential Institutions for Temporary Accommodation of Foreign Nationals (STRENF) and closed-type facilities under the SAR - CM 

Special Detention Centre

The current Bulgarian legislation regulates the conditions of immigration detention in the Aliens Act (AA), adopted on 27.12.1998, Chapter 5, Article 44 et seq. The AA contains provisions regulating access to, residence in and removal from the territory of the Republic of Bulgaria in respect of third-country nationals, i.e., non-EU nationals, and does not apply to asylum seekers.

The wording of the provisions do not use terms such as administrative or immigration detention, but instead uses the term "accommodation". The places where foreign nationals are detained are described as " Special Residential Institutions for Temporary Accommodation of Foreign Nationals (STRENF). However, they are essentially closed premises which have all the characteristics of a place of deprivation of liberty. According to the provisions of the AA, these "special facilities" are part of and managed by the Migration Directorate of the Ministry of the Interior ("MOI"). Currently, there are two operating STRENFs in the country; one is located in the Busmanci district of Sofia (STRENF - Sofia) and (STRENF - Lyubimets).

As far as the legal grounds for migration detention are concerned, it applies only when no other sufficient but less coercive measures can be effectively applied in the particular case to a third-country national who is subject to return procedures. Immigration detention may be imposed solely for the purpose of preparing the return and/or the removal process, and where there is a risk that the person will abscond or is evading or obstructing the preparation for return or the removal process. Bulgarian case-law extends the scope of immigration detention compared to the one provided for in the AA and in Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally residing third-country nationals, according to which States may detain a third-country national in respect of whom return proceedings have been initiated "only in order to prepare the return and/or to carry out the removal process. Any detention must be for a period as short as possible and must last only during the removal procedures if those procedures are carried out in a duly manner.

The Bulgarian court's tendency to give new meaning to immigration detention by equating it with a social service providing shelter, food and protection against stress and homelessness, assuming that there is no de facto deprivation of liberty, is dangerous and unacceptable. For example, in a court decision on compensation for unlawful detention under the SMLDA, it is stated that "the accomodation in a detention centre is a temporary measure in respect of illegally staying foreigners on the territory of the Republic of Bulgaria, which is intended to provide them with shelter, food, care and medical services to meet their basic needs. The measure is temporary until the foreigner is removed from the country. Asylum seekers in a foreign country and illegally residing foreigners need support because they have no social environment in the host country, they do not speak the language, they are not integrated, they have difficulties adapting, and most of them have experienced traumatic events in their country of origin. Providing accommodation in such institutions as the Detention Centre is entirely in their best interest and is aimed at protecting them from stress in an unfamiliar and unsupported environment and providing shelter, food and medical care. Placement in a Detention Centre is not a deprivation of liberty ...".[2]

In order to establish the existence of a risk of absconding, there must be a "reasonable presumption" that the foreign national "will attempt to evade the execution of the measure imposed" (paragraph 1, item 4c of the Additional Provisions of the AA). The AA also includes a non-exhaustive list of factors that may give rise to a presumption of a risk of absconding: for example, the person 'cannot be found at their declared address of residence, the existence of previous public order offences [...], possession of forged documents or having no documents [...], etc.

The case law is contradictory regarding the interpretation of the grounds for the application of immigration detention - "obstruction of the execution of the order" or "risk of absconding" (Article 44, paragraph 6 of the AA). Authorities consider that the condition of "obstructing the execution of the return order" is met if the third-country national does not agree to voluntary return or simply does not possess travel documents.[3]

The initial detention order in the Detention Centre is issued for a period of six months and may be appealed within 14 days before the relevant administrative court, whose decision shall be subject to appeal before the Supreme Administrative Court. The right to judicial control over the initial detention is not effectively used by detainees due to limited access to legal aid and the impossibility to access the appeal procedure independently in detention conditions in closed-type facilities. Detention in a detention center can last up to 18 months.

With regard to the material and organisational conditions in the Detention Centre, a report on the visit to Bulgaria of a delegation of the UN Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (SPT), held between the 24-30 October 2021,[4] states, inter alia, that the persons held in the Detention Centre Busmanci were deprived of their liberty and were generally guarded by police officers in uniform. The SPT also established that there was a serious lack of information for the detained migrants regarding their personal and legal situation. The SPT has received information on the practice of "attaching" unaccompanied migrant children to adult members who are not their family and is of the opinion that this is an unacceptable practice and may lead to children being placed in adult facilities.

The SPT also established disturbing data on the living conditions of migrants, including the children monitored in the Busmanci detention center. These findings include the presence of bed bugs in mattresses, lack of blankets, heating, hot water, clothing, shoes and personal hygiene items, lack of access to toilets at night, complaints about the quantity and quality of food, allegations of abuse in the facility and several other disturbing conditions.

The fact that the material conditions did not meet the minimum standards for places of deprivation of liberty and that the treatment of the staff of the Detention Centre Busmanci was humiliating  served as the basis for several claims for non-pecuniary damages under the State and Municipalities Liability for Damages Act (SMLDA) for inhuman and degrading treatment and living conditions.[5]

Closed-type facilities of the SAR

As far as the State Agency for Refugees' (SAR) closed accommodation facilities are concerned, the accommodation of persons in such facilities is regulated in Chapter Four, Section V of the Law on Asylum and Refugees. Pursuant to Article 45b of the Law on Asylum and Refugees (LAR), whenever the measure "compulsory appearance of the foreigner every two weeks during the proceedings before an official of the agency" cannot be effectively applied and after an assessment of the circumstances of the particular case, a foreigner seeking international protection may be placed temporarily and for the shortest possible period in a closed-type centre. There are four objectives exhaustively listed for such temporary placement: (1) to establish or verify the foreigner's identity or nationality; (2) to establish the facts and circumstances on which the application for international protection is based, where this cannot be done in any other way and there is a risk that the foreigner will abscond; where this is necessary to protect national security or public order; and (4) to establish the State competent to examine the application for international protection and transfer the foreigner to the competent State, and where there is a serious risk of the foreigner absconding.

Regarding the material and organisational conditions in the SAR's closed-type accommodation facilities, the BHC, in its Annual Report on the State of Human Rights for 2022,[6] found that since 2015 the reception conditions in the SAR's accommodation centres had deteriorated below the minimum standards required, and that the support provided was limited to accommodation, food and very rudimentary medical care, but no specialised psychological or psychiatric services. The BHC found that, with the exception of the refugee centre in the quarter "Vrazhdebna in Sofia and the safe zones for unaccompanied children, all other centres in the period between 2015 and 2022 were maintained only in survival mode, experienced recurrent problems with infrastructure and material conditions and did not provide even basic living conditions, including conditions for maintaining basic personal hygiene and hygiene in common and private areas.

Part II – Places of deprivation of liberty in Bulgaria

Prisons

According to the Penal Code of the Republic of Bulgaria (Penal Code, in force since 01.05.1968), deprivation of liberty is one of the penalties listed exhaustively in Article 37, which may be imposed for an offense committed under the special part of the Penal Code. Pursuant to Article 40, par. 40(1) of the Penal Code, the penalty of deprivation of liberty shall be served in prisons, as well as in correctional institutions and their prison dormitories.

The procedure and the manner of execution of the deprivation of liberty sentence is regulated in the Law on Execution of Sentences and Detention (LESGD, in force since 01.06.2009). Pursuant to Article 12, paragraph 1, of the LESGD, the direct management and control over the activities of places of deprivation of liberty and probation services are carried out by the General Directorate for the Execution of Penalties. Pursuant to Article 40, paragraph 1, of the LESGD, the penalty of imprisonment is executed by placing the convicted persons in certain places of deprivation of liberty and subjecting them to correctional influence. The "correctional impact" is implemented through 5 measures: 1. provision of conditions for the maintenance of the physical and mental health and for the respect of the human dignity of the convicts; 2. realization of the restrictions included in the content of the punishment; 3. limiting the negative consequences of the effect of the sentence and the harmful influence of the environment on the convicts; 4. providing conditions for the exercise of the rights of the convicts; 5. organization of labour, educational, sport and other activities.

In the execution of the penalty of deprivation of liberty, conditions are created for the protection of the physical and mental health of prisoners. A medical file is established for each prisoner, containing information and continuously maintained data on their health status. When a prisoner is transferred to another prison, the medical file is immediately forwarded to the receiving territorial service (Article 128, paragraph 1 of the LESGD).

Regarding the material and organisational conditions in prisons, the European Committee for the Prevention of Torture, Inhuman and Degrading Treatment or Punishment (CPT), in the report of its periodic visit in 2021,[7] found, among other things, a serious problem with medical and psychiatric care, as well as a lack of adaptation of the prison environment to prisoners with disabilities. Other problems include inmate violence and drug use.

The major complaints from prisoners are mainly related to problems such as overcrowding, the poor state of the facilities in some prisons, poor hygiene and the infestation of bedbugs and cockroaches. Other complaints are related to the continuous video surveillance of the cells in the high security area (in the prison in Pleven). 

Another problematic area for prisons in Bulgaria is medical care. Complaints are mostly related to initial medical examinations, lack of adequate ongoing medical care, long delays in referrals to external specialists and external hospitals, lack of access to medication for prisoners, and the critical state of penitentiary hospital care.

Among the problems identified is also the lack of impunity in cases of abuse of prisoners by guards. Indicative of this finding is the lack of initiation of pre-trial proceedings on relevant alerts and the failure to inform the complainants about the progress of the investigation.

Investigative arrests

Remand in custody is one of the pre-trial detention measures exhaustively listed in Article 58 of the Penal Code (PC, in force from 29 April 2006).

Pursuant to Article 63, paragraph 63, paragraph 1 of the PC, remand in custody shall be taken when there is a reasonable presumption that the accused has committed an offence punishable by deprivation of liberty or other more serious penalty and the evidence in the case indicates that there is a real risk that the accused will abscond or commit an offence. When the risk of the accused absconding or committing a criminal offence is no longer present, the pre-trial detention shall be amended to a lighter measure or revoked (Article 63, paragraph 3). The pre-trial detention measure may not last longer than eight months if the person is charged with a serious deliberate offence, or longer than one year and six months if the person is charged with an offence punishable by at least fifteen years' imprisonment or other more serious penalty. In all other cases, pre-trial detention should not exceed two months (Article 63, paragraph 4).

Comparative analysis

From a legal standpoint, both migrants in detention centres and persons in places of deprivation of liberty enjoy certain protections under Bulgarian law. The application and implementation of the remedies provided for this purpose may, however, differ significantly, which may lead to differences in the practical application of the safeguards to respect the rights of these persons.

It is important to remember that migrant detention centres and places of deprivation of liberty perform different public functions and the legal safeguards reflect these differences. The former primarily deal with administrative issues related to immigration, while the latter are part of the criminal justice system.

The principle of "non-punishment" for unauthorised entry or stay is fundamental to the international legal framework for refugee protection under the 1951 Convention relating to the Status of Refugees. As a result, migration detention should not be considered criminal in nature and should only be used as a measure of last resort when less coercive measures cannot be effectively applied. Therefore, the guarantees related to the right to a fair trial, the presumption of innocence and the protection against self-incrimination, which are common in the criminal justice system, have no direct parallel in the context of migration detention.

However, there are indeed concerns that migrants in detention are afforded less protection in practice. Issues such as limited access to legal aid, employment, education, healthcare, leisure activities, as well as the lack of interpreters and the complexity of the asylum process, can hinder the effective implementation of safeguards for migrants in detention. This is further complicated by the fact that many migrants may be unaware of their rights or lack the resources needed to assert them.

In contrast, while persons in places of deprivation of liberty also face challenges in accessing their legal safeguards, procedures and rights in the criminal justice system are generally more firmly established and enforceable.

So, while it would not be accurate to categorically state that migrants in detention are less protected by the law than people deprived of liberty, there are legitimate concerns that the practical application of the remedies provided may not be sufficient, making migrants in detention more vulnerable in some respects. This is a nuanced issue requiring careful consideration of the specificities of the different legal regimes and their practical application.

Conclusion and recommendations

This comparative analysis of migrant detention centres and places of deprivation of liberty in the context of the Bulgarian legal framework and practices reveals some key parallels and differences. Although the two categories of institutions perform different public functions and exist under different legal regimes, they share some common and significant issues related to living conditions, access to basic services and treatment of the detainees.

These findings are far from trivial. They have serious implications for the lives of detainees, for the functioning of Bulgarian society and for the country's authority in the international community. They also highlight the urgent need for comprehensive and systemic reforms that not only address the unique problems in each type of facility, but also tackle the common underlying challenges. These reforms should seek to ensure fair and humane treatment of all persons in these facilities in accordance with Bulgaria's obligations under domestic, EU and international law.

The analysis also highlights the importance of maintaining a clear distinction between administrative detention in the context of migration and detention under criminal law. Maintaining this distinction is key to upholding human rights, promoting the rule of law and ensuring that detention is used as a measure of last resort to control migration.

Based on the comparative analysis, several recommendations can be proposed to improve the conditions in migrant detention centres, SAR’s closed-type detention facilities and custodial facilities in Bulgaria:

1. Make a clear distinction between criminal and administrative detention: reforms should be considered to show in practice the principle that detention for immigration control purposes should not be punitive and should only be used as a measure of last resort when there are no other options. This should include in each case the research and implementation of alternatives to detention. The criminalisation of migration and the unbalanced migration policy with a focus on coercive measures and border controls is in serious conflict with fundamental principles of human rights protection, key principles of refugee law and fundamental principles of democratic European societies.

2. Improving living conditions: migrant detention centres and places of deprivation of liberty in Bulgaria suffer from overcrowding. Common to all three types of detention facilities (migrant detention centres, SAR’s closed-type detention facilities and places of deprivation of liberty) is poor hygiene and living conditions. It is essential to improve living conditions in these places to ensure that they meet international standards. This could include investing in the infrastructure of the facilities, reducing overcrowding, ensuring adequate and good quality food and hygiene conditions, and introducing regular inspections to monitor conditions.

3. Improving access to legal services: The analysis highlighted concerns about access to legal aid in both the migrant detention centres and  SAR’s closed-type centres, as well as places of deprivation of liberty. To remedy this, the provision of free and quality legal aid to all detainees should be ensured. Lawyers and legal aid organisations should be encouraged to specialise in immigration and criminal law respectively in order to provide adequate assistance.

4. Ensuring adequate healthcare: It is essential to improve access to medical services in these facilities. Detainees should have the right to regular medical examinations and necessary treatment. Special attention should be paid to mental health services due to the stressful nature of detention.

5. Provision of language services: For detained migrants and refugees, the provision of translation services is essential. All detainees should be able to receive information in a language they understand in order to fully understand their legal situation and the procedures to which they are being subjected.

6. Staff Training: Staff training programmes should be established in all three types of facilities to ensure that staff have the necessary knowledge and skills to carry out their roles effectively and with due respect to the persons detained. This could include training on detainee rights, cultural sensitivity, de-escalation techniques and basic legal procedures.

7. Monitoring and supervision mechanisms: Independent monitoring bodies should be established or reinforced to ensure regular and unannounced visits to all detention facilities. They should be authorised to make recommendations, receive comments from the authorities and publish their reports.

8. Engaging civil society: NGOs and other civil society organisations should be included in discussions related to detention reform. These organisations often have valuable information from their own experience and can help oversee the implementation of the reforms.

9. Policy reforms: Given the common challenges in both types of facilities, a comprehensive approach to reforming places of deprivation of liberty is needed in Bulgaria. This could include reviewing existing laws and regulations, resolving systematic problems and ensuring that the management of detention facilities is in accordance with Bulgaria's obligations under national, EU and international law.

10. Public awareness campaigns: Efforts should be made to raise public awareness and understanding of detention conditions and the rights of detainees. This can help generate public support for reform initiatives.

While these recommendations represent a starting point, the process of improving conditions in places of deprivation of liberty will require sustained effort, re edsources, and political will. Further research and consultations with relevant stakeholders will be crucial to adapt these recommendations to the specific needs and context in Bulgaria.

Prepared by Dilyana Giteva

Advocacy Expert, Legal Aid Center - Voice in Bulgaria