Legal situation regarding LGBT in Bulgaria
12/10/2005
By
Desislava Petrova
The anti-discrimination law, protecting LGBT people from discrimination on grounds of sexual orientation entered into force on 1 January 2004.
The law provides protection against discrimination on the grounds of sexual orientation in the fields of employment, health care, and education, recruitment to the military, housing, accommodation, and a range of services available to the public. The law provides protection against harassment and victimization. It also explicitly defines the term “sexual orientation” as heterosexual, bisexual, homosexual orientation.
The law bans discrimination on a number of grounds, including race, sex, religion, disability, age, and sexual orientation. The ban applies to the exercise of any legal right or legitimate interest and is binding on any person. Any individual or entity on Bulgarian territory is protected. The Act provides for exhaustive definitions of the prohibited conduct, and of the exceptions to the prohibition, as well as for shift of the burden of proof. Special remedies are envisaged, including a specialized antidiscrimination Commission with the powers to receive and investigate complaints and signals, and issue binding rulings, finding discrimination and imposing sanctions and instructions on perpetrators. This independent Commission consists of 9 members, 5 elected by Parliament and 4 appointed by the President. It has specialized subcommittees for racial and sex discrimination. Sanctions envisaged are dissuasive. In addition, a special judicial remedy is available to victims and public interest organizations, including a possibility for any number of claimants to join the proceedings. Judicial protection includes a finding of discrimination, an order on the respondent to terminate the breach and eliminate its consequences, as well as to abstain from repeating the breach, and an order of compensation.
The Act is in line with the antidiscrimination law of the European Union, in particular Directives 2000/43, 2000/78, 2002/73, as well as with the Framework Programme for the Equal Integration of Roma into Bulgarian Society. The law consolidates Bulgarian antidiscrimination law, until now scattered and ineffective, into a single comprehensive act guaranteeing practical enforceability of the protection. For the new law to be effective, an antidiscrimination Commission, consisting of experienced individuals dedicated to human rights, must become operative without delay.
The gender identity is not introduced amongst the non-discrimination criteria.
"In September 2002 the Bulgarian Parliament repealed several provisions, including one prohibiting homosexual acts committed “in public or in a scandalous way or in such a manner as to induce others along the road to perversion”. Initial reports indicated Bulgaria’s September law reforms had resulted in the repeal of all significant discriminatory aspects of the criminal law, a position which the European Commission endorsed in the its Bulgaria report. “The 2001 Regular Report commented on discrimination on the grounds of sexual orientation in the Bulgarian Penal Code. Amendments to the Penal Code adopted in September 2002 eliminate these discriminatory provisions. They equalize the age of consent, the legal situation for homosexual and heterosexual prostitution, and the penalties for rape and decriminalize provisions on homosexual actions in public. The recent changes to the Penal Code are an important step in removing discrimination on the grounds of sexual orientation.”
Even after the changes and the numerous critics from the European Institutions, Article 157 remains discriminatory by its simple existence, since it regulates crimes which are already regulated under other articles. It is still possible for a person who benefits from a homosexual prostitution to be prosecuted by law (Art. 157, Para 4 “a person who, by giving or promising benefit abets others to homosexual acts, shall be punished by deprivation of liberty for up to three years and by a fine of up to 1000 Bulgarian lv, where as the court may rule probation of certain period not to visit a certain place, region or public place”). This act is not a crime if in case of heterosexual intercourse. There are still different penalties for the same crimes, committed by homosexual and heterosexual persons. There are still different penalties for crimes of homosexual and heterosexual nature. For a homosexual act where consent is absent the sanction is imprisonment and a public censure (Art. 157, Para 1, A person who performs sexual intercourse or acts of sexual satisfaction with a person of the same sex, by using for that purpose force or threat, or by taking advantage of a position of dependency or supervision, as well as with a person deprived of the possibility of self-defence, shall be punished by deprivation of liberty from two up to eight years, as well as with public censure). Public censure is not applied for perpetrators of heterosexual rape.
Moreover, this article still maintains some discriminatory penalties for the same crime, but on the basis of sexual orientation (Art. 157, Para 1 & 4). The different approaches to seeking criminal responsibility from heterosexual and homosexual persons for sex crimes should be removed, in accordance with the requirement of the European Parliament of the European Union in its Resolution on Equal Rights for Homosexual Men and Lesbians.
The Penal Code should not contain texts that differentiate sex crimes based on whether the perpetrators are homosexual or heterosexual persons. An example of a non-discriminatory attitude may be found in articles 149 and 150, which refer to the crime of debauchery. In this article, the gender of the perpetrator and of the victim of the crime does not matter. They may be of different gender or both of the same sex.
There are no provisions in the Bulgarian legislation regarding registered partnership both for heterosexual and for homosexual couples. Cohabitation is not a legal basis for inheritance, since partners are not included in the legal circle of heirs. Therefore, cohabitating partners may inherit from one another only when there is a last will statement, and not on the basis of their relationship. Cohabitating partners inheriting through a will have no right to a preserve part of the estate. Cohabitating partners have no parental rights over the children of the other partner. It is possible, however, for one partner to legally adopt the other's biological children. It is not possible for cohabitating couples to adopt children, since the law requires the adoptive couples to be legally registered as married. There are no political trends toward adopting any changes in partnership/family law towards legal recognition of same-sex partnerships. Same-sex partners are not allowed to legalize their relationships, have no patrimonial rights or the right to adopt children and no right for hospital visitation of their partner.
Although the Supreme Court has long accepted that de facto spousal cohabitation is a basis for seeking non-material damages in cases of one partner's death, there is still no case on complaints filed by same-sex partners.
Artificial insemination is available in some clinics in Bulgaria. However, it is usually accessible only to married heterosexual women. Ministry of Health Regulation 12 of 1987 sets out that women can be inseminated with seed from their husbands or from a third person only if the husband's seed is not fertile.
The law provides protection against discrimination on the grounds of sexual orientation in the fields of employment, health care, and education, recruitment to the military, housing, accommodation, and a range of services available to the public. The law provides protection against harassment and victimization. It also explicitly defines the term “sexual orientation” as heterosexual, bisexual, homosexual orientation.
The law bans discrimination on a number of grounds, including race, sex, religion, disability, age, and sexual orientation. The ban applies to the exercise of any legal right or legitimate interest and is binding on any person. Any individual or entity on Bulgarian territory is protected. The Act provides for exhaustive definitions of the prohibited conduct, and of the exceptions to the prohibition, as well as for shift of the burden of proof. Special remedies are envisaged, including a specialized antidiscrimination Commission with the powers to receive and investigate complaints and signals, and issue binding rulings, finding discrimination and imposing sanctions and instructions on perpetrators. This independent Commission consists of 9 members, 5 elected by Parliament and 4 appointed by the President. It has specialized subcommittees for racial and sex discrimination. Sanctions envisaged are dissuasive. In addition, a special judicial remedy is available to victims and public interest organizations, including a possibility for any number of claimants to join the proceedings. Judicial protection includes a finding of discrimination, an order on the respondent to terminate the breach and eliminate its consequences, as well as to abstain from repeating the breach, and an order of compensation.
The Act is in line with the antidiscrimination law of the European Union, in particular Directives 2000/43, 2000/78, 2002/73, as well as with the Framework Programme for the Equal Integration of Roma into Bulgarian Society. The law consolidates Bulgarian antidiscrimination law, until now scattered and ineffective, into a single comprehensive act guaranteeing practical enforceability of the protection. For the new law to be effective, an antidiscrimination Commission, consisting of experienced individuals dedicated to human rights, must become operative without delay.
The gender identity is not introduced amongst the non-discrimination criteria.
"In September 2002 the Bulgarian Parliament repealed several provisions, including one prohibiting homosexual acts committed “in public or in a scandalous way or in such a manner as to induce others along the road to perversion”. Initial reports indicated Bulgaria’s September law reforms had resulted in the repeal of all significant discriminatory aspects of the criminal law, a position which the European Commission endorsed in the its Bulgaria report. “The 2001 Regular Report commented on discrimination on the grounds of sexual orientation in the Bulgarian Penal Code. Amendments to the Penal Code adopted in September 2002 eliminate these discriminatory provisions. They equalize the age of consent, the legal situation for homosexual and heterosexual prostitution, and the penalties for rape and decriminalize provisions on homosexual actions in public. The recent changes to the Penal Code are an important step in removing discrimination on the grounds of sexual orientation.”
Even after the changes and the numerous critics from the European Institutions, Article 157 remains discriminatory by its simple existence, since it regulates crimes which are already regulated under other articles. It is still possible for a person who benefits from a homosexual prostitution to be prosecuted by law (Art. 157, Para 4 “a person who, by giving or promising benefit abets others to homosexual acts, shall be punished by deprivation of liberty for up to three years and by a fine of up to 1000 Bulgarian lv, where as the court may rule probation of certain period not to visit a certain place, region or public place”). This act is not a crime if in case of heterosexual intercourse. There are still different penalties for the same crimes, committed by homosexual and heterosexual persons. There are still different penalties for crimes of homosexual and heterosexual nature. For a homosexual act where consent is absent the sanction is imprisonment and a public censure (Art. 157, Para 1, A person who performs sexual intercourse or acts of sexual satisfaction with a person of the same sex, by using for that purpose force or threat, or by taking advantage of a position of dependency or supervision, as well as with a person deprived of the possibility of self-defence, shall be punished by deprivation of liberty from two up to eight years, as well as with public censure). Public censure is not applied for perpetrators of heterosexual rape.
Moreover, this article still maintains some discriminatory penalties for the same crime, but on the basis of sexual orientation (Art. 157, Para 1 & 4). The different approaches to seeking criminal responsibility from heterosexual and homosexual persons for sex crimes should be removed, in accordance with the requirement of the European Parliament of the European Union in its Resolution on Equal Rights for Homosexual Men and Lesbians.
The Penal Code should not contain texts that differentiate sex crimes based on whether the perpetrators are homosexual or heterosexual persons. An example of a non-discriminatory attitude may be found in articles 149 and 150, which refer to the crime of debauchery. In this article, the gender of the perpetrator and of the victim of the crime does not matter. They may be of different gender or both of the same sex.
There are no provisions in the Bulgarian legislation regarding registered partnership both for heterosexual and for homosexual couples. Cohabitation is not a legal basis for inheritance, since partners are not included in the legal circle of heirs. Therefore, cohabitating partners may inherit from one another only when there is a last will statement, and not on the basis of their relationship. Cohabitating partners inheriting through a will have no right to a preserve part of the estate. Cohabitating partners have no parental rights over the children of the other partner. It is possible, however, for one partner to legally adopt the other's biological children. It is not possible for cohabitating couples to adopt children, since the law requires the adoptive couples to be legally registered as married. There are no political trends toward adopting any changes in partnership/family law towards legal recognition of same-sex partnerships. Same-sex partners are not allowed to legalize their relationships, have no patrimonial rights or the right to adopt children and no right for hospital visitation of their partner.
Although the Supreme Court has long accepted that de facto spousal cohabitation is a basis for seeking non-material damages in cases of one partner's death, there is still no case on complaints filed by same-sex partners.
Artificial insemination is available in some clinics in Bulgaria. However, it is usually accessible only to married heterosexual women. Ministry of Health Regulation 12 of 1987 sets out that women can be inseminated with seed from their husbands or from a third person only if the husband's seed is not fertile.
