End of Mission Statement
Pushbacks against women’s rights and gender-based violence against women based on misinterpretation of the term “gender” should be reversed
Sofia, 21 October 2019
I would like to start by thanking the Government of the Republic of Bulgaria for inviting me to visit the country from 14 to 21 October 2019. During these eight days, I met with representatives of the executive, legislative and judiciary, the Ombudsperson, the Commission for Protection against Discrimination, the National Commission for Combating Trafficking in Human Beings, the Parliament, the National Institute of Justice, civil society organizations, women crisis centers, UNICEF and UNHCR. I visited Sofia, Haskovo, Dimitrovgrad, Pernik and the women prison in Sliven. I was supposed to visit Varna, but I couldn’t go due to a flight cancellation. I would like to express my gratitude to all of the interlocutors involved for their excellent cooperation and to the survivors of violence who shared their stories with me.
Today I will present my preliminary findings, whereas my final report will be presented at the Human Rights Council, in June 2020. The purpose of my visit was to address and analyze violence against women, its causes and consequences in the country, in light of the well-established international human rights framework, and to engage in a constructive dialogue with the authorities in order to provide recommendations on how to better implement the international obligations and adopt the measures needed to prevent and eradicate all forms of gender-based violence against women and girls.
The international human rights framework that I am using is the UN Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), which Bulgaria ratified in 1982, the International Declaration on the Elimination of Violence against Women (DEVAW), and other relevant regional instruments, such as the European Convention on Human Rights and the Council of Europe Convention on Preventing and Combatting Violence Against Women and Domestic Violence, known as the Istanbul Convention, which Bulgaria has signed but not yet ratified. My analysis is also built on the CEDAW General recommendation No. 19 on violence against women and General Recommendation No. 35 on gender-based violence against women, the jurisprudence of the CEDAW Committee and on the case-law of the European Court on Human Rights.
This country visit is happening during a challenging time of pushbacks on women’s rights in Bulgaria, which are hampering legislative and policy changes needed to combat and prevent violence against women and girls. The massive campaign against the ratification of the Convention prompted 75 members of the Parliament to request the Constitutional Court to decide on the conformity of the Istanbul Convention with the Bulgarian Constitution.
The Constitutional Court delivered its judgment on 27 July 2018, with 3 dissenting opinions, in which it declared that the Istanbul Convention is incompatible with the Constitution (article 3(c) and article 4(3)).
This judgment of the Constitutional Court stopped the ratification process but also provided the platform for a massive campaign against the Istanbul Convention and the term “gender” continued to be used. This campaign resulted in the open intimidation of activists and women’s rights organizations working to prevent and respond to violence against women, many of which have reported an increase of hate speech and shaming of individuals and organizations which supported the Istanbul Convention. Those NGOs have also reported that State’s funds for services in Sofia were cut as a result of the current prevailing negative atmosphere against the term “gender”. A representative from an NGO told me that they are considering changing the name of their organization because it contains the term “gender”.
Attacks on the LGBTI community have also increased.
This situation is particularly concerning. I would like to urge the Government and all stakeholders, including the media, academia, members of the Parliament, NHRI and NGOs to engage in a constructive dialogue, in order to find a way to properly translate and interpret the term gender in the context of gender-based violence and domestic violence and to reopen the ratification process of the Istanbul Convention.
This misinterpretation of the term “gender” could be partially attributed to the lack of its consistent translation in the Bulgarian language, without taking into account the well-established international human rights framework established by the UN Declaration on the Elimination of Violence against Women of 1993 (DEVAW), which defines violence against women as “Any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” The CEDAW Committee also uses the term“gender-based violence against women” in its General Recommendations No. 19 on violence against women and in its General Recommendations No. 35, on gender based violence against women, which clearly mentions that the prohibition of gender-based violence is now considered customary international law.
The Constitutional Court in its judgment also found “that despite its undeniable positive aspects, the Convention is internally contradictory and that the meaning of some of its provisions goes beyond the Convention’s stated purposes and its title”.
The Istanbul Convention is a “living human rights instrument”. Its implementation by other States that ratified it - currently 34 member States of the Council of Europe - and the recommendations provided by the GREVIO and the Committee of the Conventions State parties have not revealed internal contradictions, nor did the very recent Venice Commission’s opinion on compatibility of the Constitution of Armenia with the Istanbul Convention.1
The judgment of the Constitutional Court did not analyze the relevance of the UN CEDAW Convention, a legally binding instrument ratified by Bulgaria in 1982 and considered as a part of its legal system. In fact, the obligations to prevent violence against women, provide adequate services and reparation, which are the core of the Istanbul Convention, are mirrored in the CEDAW Convention, as explained in the General Recommendation No. 35 on gender-based violence against women.
Moreover, the 2012 EU Directive on establishing minimum standards on the rights, support and protection of victims of crime (Directive 2012/29), also known as Victims’ Rights Directive, which all EU member states were obliged to transpose, in its recital 17 defines “gender-based violence” as “violence that is directed against a person because of that person's gender, gender identity or gender expression or that affects persons of a particular gender disproportionately” and provides that victims of crime must be treated ‘without discrimination of any kind based on any ground such as (...) gender, gender expression, gender identity, sexual orientation.”
Therefore, in this Directive reference is made to gender and gender identity.
The Constitutional Court, in its analysis on the compatibility of article 4(3) (which mentions the terms gender and gender identity) used the translation of ‘социален пол’ (‘social gender’), whereas in all other articles of the Convention the term “gender” was translated as “пол” (sex). In the EU Victims’ Rights Directive, the term “gender” is translated as “пол” and not as ‘социален пол’ (‘social gender’).
This unique translation of the term “gender” used in Article 4 (3) of the Istanbul Convention, compounded with other misinterpretations of this term, led to the public vilification of the term “gender” and to the rise of an “anti-gender campaign”. By doing this, the whole concept of gender-based violence as an internationally accepted concept has been misinterpreted.
Additionally, the term gender is also well established in Bulgaria’s domestic law. The 2016 Equality between Women and Men Act at its article 2(3), mentions “equal treatment of women and men and non-discrimination and violence based on gender”, and article 2(5) “overcoming stereotypes, based on gender”.
The term “gender” already existed within the Bulgarian legal framework, in the CEDAW Convention and the aforementioned EU Directive. My question to the Bulgarian authorities is simple: are the UN CEDAW Convention and its General Recommendations No. 35 on gender based violence as well as the EU Victim’s Rights Directive contrary to the Bulgarian Constitution, because they use the term “gender”, “gender identity” and “gender-based violence”?
My recommendation based on the above is to counter the misinterpretation of the term “gender” and to properly translate, explain and promote the terms “gender” and the concept of “gender based violence against women” and to proceed to the ratification of the Istanbul Convention.
The legal framework on violence against women and domestic violence
The government demonstrated its willingness to prevent and combat violence against women. In 2016, Bulgaria adopted the Equality between Women and Men Act, which promotes the state policy based on the principle of equality between women and men. In February 2019, Bulgaria amended its Criminal Code and added domestic violence as an aggravating circumstance for several crimes, criminalized stalking, psychological violence and some elements of coercive control. By those amendments, some provisions of criminal law and domestic violence law were put in line with CEDAW and Istanbul Convention.
I also would like to congratulate Bulgaria for its role as an active member of the UN Human Rights Council, and on providing the CEDAW Committee with an eminent expert, Ms. Tisheva, who is now contributing to the progressive work of the Committee in promoting women’s rights.
The current legal barriers in the Criminal Code and in the Law on Protection against Domestic Violence, the lack of shelters and inefficient protection orders as well as the tolerance and normalization of violence against women are some of the reasons of the low reporting rate of domestic violence.
According to the EIGE Gender Equality Index of 2017, Bulgaria has one the lowest rates of reporting domestic violence in Europe.2 It is necessary to take awareness raising measures to encourage reporting acts of violence.
The Criminal Code
In its Concluding Observations of 2012, CEDAW called for “amendments to its Criminal Code and Criminal Procedure Code in order to specifically criminalize domestic violence and marital rape and to introduce the possibility of ex officio prosecution for both offences”. The revision of the Criminal Code, which entered into force in February 2019, included domestic violence as an aggravating circumstance in homicides, bodily injuries, abduction, coercion, death threats and included criminalization of stalking and psychological violence.
Despite those amendments, I am concerned that several important provisions fail to comply with international standards. Marital rape is not explicitly criminalized and the definition of rape is not in line with international standards. The definition of rape provided for in article 152 covers only women, it is not fully based on lack of consent and does not cover all types of rape. Consequently, it is not in line with the international human rights standards as elaborated in the CEDAW Committee’s jurisprudence in case “V.P.P v. Bulgaria” and also in the Istanbul Convention in article 36).
Another concerning provision is article 93 para. 31. According to this article, a crime is considered to have been committed in conditions of domestic violence “if it is preceded by systematic physical, sexual or psychological violence”. The Office of the Prosecutor issued an Ordinance and interpreted “systematic” as three separate acts of violence by the same perpetrator, which means that victims must have been subjected to three episodes of physical, sexual violence or psychological violence for a public prosecution to be opened. This provision could expose victims of domestic violence to serious risks and present significant limitations in applications of those provisions and the ordinance.
I would like to recommend the following legislative amendments:
- Revise the rape provision based on the lack of consent and include all forms of penetration and explicitly include martial rape.
- Repeal the term “systematic” in article 93 to allow domestic violence to be qualified as a graver punishable offence or change the Ordinance of the Public Prosecutor to allow all “grave” incidents to be addressed.
- Provide a definition of “psychological violence” and criminalize all forms of psychological violence rather than only stalking.
- Improve the provision of article 161 which provides that for light and average bodily harm in order to allow for ex office prosecution.
- Change status of limitation for minors reporting the violence, as provided in the Istanbul Convention.
The Law on Protection against Domestic Violence
The Law on Protection against Domestic Violence was promulgated in 2005 and revised in 2009. Some of its provisions do not comply with international standards and norms.
In its Concluding Observations, the CEDAW already called to “amend article 10 (1) of the Protection against Domestic Violence Act so as to remove the one-month time limit to file a petition for a protection order, and to ensure the stringent application by the judiciary of article 13 (3) of the Act so as to ease the burden of proof in favour of the victim”.
From the various discussions that I had with victims and other stakeholders, I was told that protection orders are not immediate and that in the first instance Court of Sofia, it takes days or even a week before a victim obtains one. Moreover, the protection order to be valid has to be served to the alleged perpetrator, which could be a problem in cases the perpetrator is not found. This means that after filing a request for protection order, a woman has to wait too long and if there are no crisis centers available, she has to go back to the same household with the same abuser, with chances to be subjected to further acts of violence.
Additionally, article 3 does not protect women in same-sex relationships, meaning that a victim of domestic violence from a same-sex partner does not have legal protection under this Law.
Under the Protection against Domestic Violence Act, perpetrators of domestic violence are supposed to attend voluntarily the specialized programmes for rehabilitation and anger and aggression management when they are referred by the court to such. The real problem is that, once directed to such programs, the perpetrator cannot be obliged to attend them, nor is there any provision for control of the implementation so provisions of mandatory rehabilitation is also needed.
Provision of shelters and services to victims of violence
In terms of services provided to victims of violence against women, I am very concerned about the existence of only one single crisis center in Sofia for women victims of violence, in a city of two million inhabitants, with just 8 available places. In the whole country, there are only 13 crisis centers for women and children victims of violence. According to the Minimum Standards of the Council of Europe, there should be at least one place for accommodation in a crisis center per every 10,000 residents.3 I am also particularly worried about the shutdown of the shelter for victims of trafficking in early 2019, due to lack of funds.
The very moment that a shelter is opened, the number of cases of domestic violence reported and the alerts received double. This is due to the fact that when services are provided, women feel more protected and more willing to seek support. According to article 2 of the CEDAW Convention, States have a due diligence obligation to take all appropriate measures to eliminate discrimination against women committed by private actors, from which we can derive the obligation to provide for integrated service, including shelters and effective protection orders, as analysed in my report on integrated services and protection measures on violence against women (A/HRC/35/30). It is important to stress the urgent need for more shelters with adequate numbers of places and services throughout the country and I encourage the Government to provide adequate and sustainable funding.
I was happy to hear about the 24/7 helpline managed by the Animus foundation with the financial support of Ministry of Justice, which receives around 2000 calls per year, and the Pulse Foundation 24/7 helpline.
I recommend the Government ensuring that sufficient State-funded crisis centers including rape crisis centers and other services in line with the EU Victims’ Rights Directive and to provide support to NGOs offering shelter and other forms of support to victims of violence.
I was informed that police officers are trained on how to tackle domestic violence and that the Ministry of Interior is currently developing a risk assessment tool. This should include an assessment of the lethality of the risk, the seriousness of the situation and the risks of repeated violence in order to provide coordinated support.
Training of police officers appears to be of crucial importance, especially because I became aware that at times police officers refuse to take reports from victims of domestic violence due to lack of understanding of the gendered perspective of violence. I encourage the Government to keep training police officers on gender-based violence against women and to overcome discriminatory gender bias and harmful gender stereotypes in the identification of cases of domestic violence.
Training and awareness raising on women’s human rights and violence against women
Education on women’s rights and violence against women is a key element for the prevention of discrimination and violence against women. Improving public awareness and outreach efforts that are victim-centered, including the dissemination of information regarding available services, is important for women and girls to claim their rights. There is an urgent need to strengthen awareness raising campaigns on the prohibition of gender-based violence, which is widespread and tolerated.
Women and girls need to be empowered and learn about gender equality, in particular those who face multiple and intersecting forms of discrimination, such as Roma women and girls. Education programmes on equality between men and women and prevention of violence against women are essential to achieve substantive gender equality. In that sense, the curricula at all levels of education should be designed to include women’s rights and violence against women and I would also strongly encourage the Government to include sexual and reproductive rights education in the curricula.
During my meeting at the National Institute for Justice, I discussed the trainings delivered to the judiciary, including judges and prosecutors, on international and regional women’s rights instruments. I found that the CEDAW Convention is not mentioned in the curricula of the judiciary and not adequately studied in Law Schools. As explained above, the CEDAW Convention, which is part of the Bulgarian legal system, enshrines some of the most important provisions on the eradication of discrimination and violence against women and must be used by all practitioners, especially given the gap on protection left by the non-ratification of the Istanbul Convention.
Coordination mechanism on violence against women and domestic violence
I welcome the establishment of a Working Group within the Ministry of Justice to amend the Law on Protection against Domestic Violence.
I encourage this Working Group to also address the shortcomings of the Criminal Code and to put both laws in line with the CEDAW Convention, especially as recommended by CEDAW Committee’s views on communication 99/2016 on Bulgaria, and Istanbul Convention.
Therefore, I recommend the government to establish a national coordination body responsible for the coordination, implementation, monitoring and evaluation of policies and measures to prevent and combat all forms of violence against women. This mechanism should also work on setting up appropriate and easily accessible crisis centers, provide for medical and forensic examination, trauma support and counselling for victims.
Data on violence against women and on femicide
During my visit, I saw that there is no unified administrative and statistical data on violence against women. Some data on femicide, or gender-related killings of women, have been shared with me. According to the Minister of Interior in 2018 a total of 33 women have been killed by family members or intimate partners.
Nevertheless, data on different forms of violence against women and girls, as well as on sexual violence, including rape, are still missing. I would like to reiterate the call I had directed to all UN Members States to establish a “femicide watch/observatories” through which member states, including Bulgaria, would release every year on 25th of November, International Day on the Elimination of Violence Against Women, the number of femicides (in categories of intimate partners femicide/family related femicide/others), disaggregated by age and sex of the perpetrators, as well as the relationship between that perpetrator and the victim or victims. Information about the prosecution and punishment of perpetrators should also be collected and published. On the basis of such information, each case of femicide should be carefully analyzed to identify any failure of protection in view of improving and developing further preventive measures. I recommend Bulgaria to establish a femicide watch or observatory, which could be placed within the responsibility of the Ombudsperson, and to collect data on all forms of violence against women.
Issues on child custody in cases of domestic violence
I received alarming information on ”family wars” and disputes concerning the custody of children in domestic violence proceedings. Perpetrators of violence against women are often referring to the so-called parental alienation concept, which refers to the presumption that a child’s fear or rejection of one parent stems from the malevolent influence of the preferred parent, usually the mother. According to the information received, this concept is often used by abusive fathers against mothers as a way of retaliation for having reported the violence or left the household.
I urge the government of Bulgaria to take into account past episodes of domestic violence and make sure that the exercise of any visitation or custody rights does not jeopardize the rights and safety of the victim or children. Ignoring intimate partner violence against women in the determination of child custody can result in serious risks to the children and thus must be considered to ensure their effective protection.
My mandate and other 6 independent mechanisms on violence against women and women’s rights have also made a joint statement on this important issue:
Migrant and refugee women
Bulgaria has a very detailed Law for the Asylum and Refugees adopted in 2003, which regulates the reception of asylum-seekers, the assessment of their claims and their rights upon recognition. Despite the positive amendments to the Law introduced in 2015, explicitly recognizing gender-specific acts of persecution and gendered forms of violence and discrimination, they are not consistently identified and addressed in the assessment of claims for protection. I prompt Bulgaria to guarantee that gender-related forms of persecution are recognized as legal grounds for granting international protection in practice and safeguards are in place to ensure the asylum procedure is gender-sensitive and in line with CEDAW General Recommendation 31.
Moreover, I was informed that women who are beneficiaries of international protection face a number of legal and practical barriers in accessing specific rights to which they are entitled, such as housing and social assistance. Once granted status, they might be allowed to remain in the State Agency for Refugees reception centers, on a discretionary basis and for a period of up to six months, but are not entitled to receive food. Due to the lack of available language and vocational courses, they are prevented from having self-reliance opportunities, which exacerbates the risk of poverty and homelessness particularly for women. Access to social housing is difficult, as the number of available houses is limited and legal provisions require the person to have resided in a particular area for an extended period in addition to one of the family members having to be a Bulgarian citizen.
Women in detention
I visited the prison in Sliven, the only female prison in the whole country. At the time of my visit, there were 220 inmates and one baby. I found that the conditions of detention were reasonably fair and I welcome the renovations carried to several parts of the prison’s facilities. Nevertheless, I was concerned to hear that there had been no access to a gynecologist in the three months preceding my visit and only the day before, a gynecologist had been assigned to the prison. During those three months, there was only one doctor and a dentist, to assist all of the women in the prison and the quality of care provided was deemed poor. According to the information received, 46 women are affected by mental disorders. While they receive psychiatric support in prison, I am concerned that upon release, they will have nowhere to go due to the lack of sufficient community-based services. The government should adopt appropriate measures and social assistance to women with mental disorders after their release. I further invite the government to apply the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok rules).
Forced early marriages and school drop-outs
I received alarming information on so-called “early marriages” of girls as young as 12 or 13 years old, mainly from the Roma community. This practice continues to be persistent and very rarely leads to criminal proceedings. Awareness raising and specific education programs can help to change existing attitudes and empower women and girls from marginalised communities. School drop-outs by young girls is also a challenge. I received information according to which 65 % of Roma girls drop out of school from the 5th to 8th grade. The three main reasons for school drop-outs is that I have collected through testimonies are early pregnancies and early marriages and fear that a girl would be abducted to be married. As soon as a girl steps out of school at such a young age, she becomes extremely vulnerable to violence and abuse. She also lacks the economic means to leave her abusive partner and therefore she may remain trapped in a vicious circle of violence.
Preventing school drop-outs is essential to reducing early marriages and pregnancies and for this purpose it is important to improve the role and functions of health and education mediators.
Trafficking of unborn babies and lack of shelter for victims of trafficking
Bulgaria has made significant efforts in the prevention of trafficking of human beings, including women and girls, thanks to a very active National Commission for Combating Trafficking in Human Beings and the effective application of the Act on Combatting Trafficking in Human Beings Act. However, Bulgaria remains one of the primary source countries in Europe for men, women, and children subjected to trafficking and sale for sexual exploitation. Women are especially vulnerable, since disaggregated data shows that women are the 87% of victims of trafficking in the past 3 years. I was alarmed to hear about the existence of a new form of trafficking of women and unborn babies to neighboring countries, especially in the area of Burgas, where women sell their babies to Greece for illegal adoption. Women are promised an amount from 10.000 to 20.000 euro per baby, but very rarely they get that amount. Desperation, lack of economic opportunities and marginalisation are the main reasons of this new disturbing form of trafficking and gender-based violence against women. I was informed by the Commission on anti-trafficking that in the city of Burgas, 50% of convictions are for trafficking of babies, which is encouraging to see that prosecution is initiated. However, in other regions these cases are still underreported. Steps should be taken to initiate immediate prosecution. Additionally, I reiterate the importance of training and awareness raising in schools, to map the risks and strengthen preventive actions among Roma women.
In conclusion, I call on Bulgaria to strengthen its legal framework on violence against women and domestic violence by fully integrating CEDAW General Recommendation No. 35 on gender-based violence and the Istanbul Convention’s standards within its legal system, as well as to establish a coordination body on implementation and evaluation of measures to prevent and combat violence against women and domestic violence. I further recommend Bulgaria to elaborate a new comprehensive National Action Plan on violence against women and domestic violence that would specifically address gender based violence and the empowerment of Roma girls.
Let me conclude by saying that is of crucial importance for Bulgaria to uphold the principle that domestic violence is not a private matter but a public concern. Bulgaria must act to break the cycle of silence and underreporting of violence against women in order to secure the right of each and every woman and girl to live a life free from violence.