Smuggling of
Persons
CHART 3: OFFENCESHAVINGRESULTEDINCONVICTIONANDINDIVIDUALSCONVICTEDOFSMUGGLINGOF PERSONS (ARTICLE 280 OFTHE CRIMINAL CODE) FORTHEPERIOD 2001–2005
Source: National Statistical Institute.
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1.6.1. Illegal crossing of the border
Illegal border crossing is criminal-ized in Article 279 of the Criminal Code and may take one of two forms:
• Entering or leaving the coun-try across the border without the authorization of the rel-evant authorities;
• Entering or leaving the coun-try across the border with the authorization of the relevant authorities but at places other than those de-signed for that purpose.
The Criminal Code reads that the penalty for illegal crossing of the border is up to five years imprisonment (one to six years in the event of a repeated offence32) plus a fine from 100 to 300 Levs, which may be replaced, at the dis-cretion of the court, with confiscation of the defendant’s property, in whole or in part.33 Except in the event of a repeated offence, the Criminal Code does not define any other forms of that offence that would carry heavier penalties.
By contrast, the preparation to commit an illegal crossing of the border is punishable as well (up to two years imprisonment or probation).
The act does not qualify as a crime and the person is not to be held liable un-der the criminal law where he or she has entered the country in orun-der to avail of the right of asylum under the Constitution. Under Article 27(2) of the Con-stitution, the Republic of Bulgaria grants asylum to aliens persecuted on the grounds of their opinion or activities in defense of internationally recognized rights and freedoms. The conditions and procedure for granting asylum are laid down in the Law on Asylum and Refugees.
32 A criminal offence is ”repeated” if the offender commits a crime after having been convicted by a final sentence for another such crime (Article 28 of the Criminal Code).
33 Until 2002 there was a possibility for the penalty of mandatory resettlement to be imposed, in conjunction with others, on any offender guilty of illegally crossing the border. In 2002 that provi-sion was repealed but another possibility was provided instead, viz. the court could order proba-tion. The 2004 amendments to the Criminal Code did away with that possibility as well. Hence, the courts can now only impose imprisonment plus a financial penalty (fine or confiscation). Proba-tion, however, was provided for as an alternative punishment (instead of correctional labor) for attempted illegal border crossings.
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Smuggling of persons is criminalized in Article 280 of the Criminal Code34 and also has two different forms:
• Illegally moving across the border separate individuals or groups of people without the authorization of the relevant authorities;
• Illegally moving across the border separate individuals or groups of people with the authorization of the relevant authorities but at places other than those designed for that purpose.
The penalty prescribed for smuggling of persons is one to six years imprison-ment plus a fine from 500 to 1000 Levs. Heavier penalties (one to ten years imprisonment, a fine from 1000 to 3000 Levs and confiscation of the offender’s property, in whole or in part) are inflicted for some forms of the offence that reveal a higher level of danger to the community:
• Smuggling a person under the age of 16;
• Smuggling a person without his or her knowledge;
• Smuggling a person who is not a Bulgarian national;
• Using a motor or other vehicle or aircraft (the vehicle is subject to forfeiture if owned by the perpetrator);
• Smuggling of persons organized by a group or organization or committed with the involvement of a public official who has abused his or her official capacity.
It is indeed striking that, unlike the illegal border crossing, the smuggling of persons does not entail heavier penalties in the event of a repeated offence.
This legislative solution has to be revisited as the cross-border smuggling of persons is especially dangerous exactly when perpetrated in a systematic way (inter alia by individuals who have already been sentenced in idem in the past).
1.6.3. Problems in the legal framework of illegal migration
The legal framework of illegal border crossings and smuggling of persons gives rise to some questions. First, by contrast to the illegal crossing of the border, the preparation towards committing smuggling of persons, an offence more dangerous to the community that should be punished more severely, is not punishable for reasons unknown. Secondly, it is difficult to distinguish be-tween the smuggling of persons and some forms of complicity (in particular aiding and abetting) in illegal border crossings. Finally, some inconsistencies transpire in the criminalization of smuggling of persons compared to traffick-ing in human betraffick-ings. In the event of trafficktraffick-ing, a heavier penalty is imposed if the victim is under the age of 18, while in the event of smuggling a heavier penalty accrues, completely unreasonably, only if the person smuggled is un-der the age of 16.
34 The smuggling of persons across the border was only criminalized in 1997. Before that criminal liability only attached to illegal border crossings.
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In order for an offence to be completed (both in the case of illegally crossing the border and smuggling of persons) the country’s border must have been crossed. This means that, for all practical purposes, the competent authorities who would detect the finalized offence after the offender left Bulgaria would be those of a neighboring country.
If the offence is detected before the actual border crossing, the perpetrator would be liable for a criminal attempt which, under Bulgarian law, carries the same penalty as the finalized offence, duly taking into account the degree of implementation of the criminal intent and the reasons for which the offence was not finalized (Article 18(2) of the Criminal Code).35
Amnesty of Illegal Border Crossings Pre-Dating 1989
In 1989, the Law on Amnesty of 11 May 1989 was passed which granted amnesty for certain criminal offences, inter alia the illegal border crossings (including all attempts and preparations) committed by Bulgarian nation-als before the passage of the law. Initially, the law required that the Bulgar-ian nationals convicted of such offences should have returned or should return voluntarily to Bulgaria. That provision was later amended and the requirement for former offenders to return to the country was abolished.
The law also provides should be absolved from criminal liability, from the duty to serve the penalty, and from any and all effects of the convictions.
The properties confiscated or seized and the fines collected by virtue of final sentences, though, should not be reinstated or reimbursed. What could be reinstated or returned were only the items and cash amounts seized under proceedings pending as of the effective date of the amnesty unless the acquisition or possession of such items or amounts was pro-hibited or they could be kept by the government on the basis of other laws.
1.6.4. Illegal migration and trafficking in human beings
Unlike trafficking in human beings, illegal border crossing and smuggling of persons are easier to prove as the prosecution office and the investigative au-thorities are not required to prove the purpose of the criminal act. Suffice it to prove the fact that the border was crossed and the lack of an authorization (where authorization is a sine qua non) or failure to cross at a point designed for that purpose (a border-crossing check-point). Therefore, when at risk of be-ing unable to collect sufficient evidence of the criminal purpose of an act the investigative authorities tend to define it as an illegal crossing of the border or smuggling of persons even if the available data suggest that the case might be one of trafficking. This conclusion is corroborated by the criminal proceed-ings instituted for illegal border crossproceed-ings or smuggling of persons which by far outnumber those opened for trafficking in human beings.
35 Nonetheless, no punishment shall be imposed where the offender retracts of his or her own voli-tion the complevoli-tion of the offence (Article 18(3) of the Criminal Code).
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ISTRICTSIn 1997, a round of amendments to the Criminal Code criminalized the illegal carrying across the border of hazardous waste. Five years later, the rule was refined by including a number of other substances, i.e. toxic chemical sub-stances, biological agents, toxins and radioactive substances. In terms of its systematic location the crime comes under the heading of Offences against Health and the Environment.
Under Article 353b of the Criminal Code, the carrying across the border of such substances is a criminal offence only if it occurs in violation of international treaties to which Bulgaria is a party. Such international instruments include for example the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal36, the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management37 Spent Fuel Management and on the Safety of Radioactive Waste Management37 Spent Fuel Management and on the Safety of Radioactive Waste Management , etc. Those treaties contain the legal definitions of the substances in question as well as the procedure and requirements associated with their transbound-ary movement. Any cross-border movement of such substances that is at odds with the requirements of the relevant treaty qualifies as a crime and entails criminal liability.
That offence is not a serious one within the meaning of Article 93, point 7 of the Criminal Code and carries one to five years imprisonment plus a fine from 1000 to 3000 Levs.