The murder of Georgi Kuzev in Plovdiv, for which five minors are accused, raises a number of serious questions - from the boundary between intentional murder and death caused by bodily harm, to the individual guilt of each participant and the specifics of the criminal liability of children. The question of how the state should balance the severity of the crime, the protection of society and the need for the minor perpetrators to be re-educated and reintegrated remains important. Lawyer Silvia Petkova spoke to FACTS about the topic.
– Adv. Petkova, five minors are accused of intentional murder in a particularly painful way for the victim, with particular cruelty, for hooliganism and related to sexual orientation motives. How severe is this legal qualification and what must be proven in the courtroom for it to be confirmed?
– The charge is for aggravated murder. For this crime, the law provides for a penalty of imprisonment from 15 to 20 years, life imprisonment or life imprisonment without parole. In other words, this is a crime for which the law provides for the most severe type of punishment among those provided for in the law - life imprisonment without parole, i.e. the legislator accepts it as an extremely serious offense. In order for the court to pronounce a guilty verdict, the following elements must be proven: the death of the victim occurred as a result of precisely defined actions of a specific person who intentionally caused the death with particular cruelty, in a particularly painful way for the victim, acting with hooliganism motives and for reasons related to sexual orientation. It is also necessary to prove intent to kill, because in principle, when inflicting a beating, it is also possible to deal with causing death by negligence, as a result of intentionally inflicted bodily harm. In this case, the perpetrator desires and aims to inflict bodily harm of a specific type, but nevertheless a death occurs, which he did not seek, but could and was obliged to foresee it or, although he had foreseen it, he believed that he could prevent it. The distinction between intentional murder and causing death by negligence, as a result of intentionally inflicted bodily harm, is made in practice by assessing the means of committing the crime, the force, intensity and number of blows inflicted, the direction of the blows and the organs affected, the mechanism of death, the behavior of the perpetrator before, during and after the act, etc.
– All five are minors, but between the ages of 15 and 17. How is the criminal responsibility of each of them assessed and to what extent will the forensic psychological and psychiatric expertise be decisive?
– The general rule in criminal law is that minors who have reached the age of 14 but not yet 18 years old are criminally liable only if they were able to understand the nature and meaning of the act and to direct their actions. The assessment concerning this ability is made on the basis of the forensic psychological and psychiatric expertise. If, according to the conclusion of such expertise, any of the minor defendants was unable to understand the nature and meaning of the act and to direct their actions, he will not be criminally liable. If the conclusion is in the opposite sense, the penalties provided for in the law, imposed in relation to minors**,** are replaced, respectively. reduced, as follows:
For minors between the ages of 14 and 16, the sentences of life imprisonment without parole and life imprisonment shall be replaced by imprisonment for three to ten years, and the sentence of imprisonment for more than ten years shall be reduced to imprisonment for three months to five years;
For minors between the ages of 16 and 18, life imprisonment without parole, life imprisonment and imprisonment for more than fifteen years shall be replaced by imprisonment for five to twelve years, and imprisonment for more than ten years shall be reduced to imprisonment for two to eight years.
– With five defendants, the question of individual guilt inevitably arises. Who bears greater responsibility – the one who inflicts the blows and causes the bodily harm, or the one who does not directly participate in the beating, but films what is happening, is present and remains complicit in the act? Can the mere fact that someone did not strike put them in a different legal position?
– When it comes to complicity, the nature and degree of each person's individual participation is always taken into account when determining the punishment. Criminal liability under the specific charge will be borne by both the physical perpetrators of the beating that led to the victim's death, as well as the aides and instigators, if any are found. In the case of complicity, the criminal liability of each person is determined individually, with the court taking into account the nature and degree of their participation. The mere status of perpetrator, instigator or aide does not automatically mean that one of them will receive a heavier punishment than the others. Those present and those filming may have the status of witnesses, unless evidence of complicity is collected. There is also a hypothesis in which they may be held criminally liable if it is established that they could have provided assistance in the presence of an immediate danger to the victim's life and in the absence of danger to themselves or others. Simply put, in order for the bystanders and the photographers to be held criminally liable, it must be proven that they perceived and realized the immediate danger to the victim's life, that there was no danger to themselves or to anyone else, and yet they did not provide the necessary assistance. An immediate danger would be present, for example, in the case of multiple aggressive individuals inflicting a beating, who may also direct their aggression towards the observer who has decided to provide assistance.
– According to publicly known data, Georgi was subjected to extremely cruel violence, including actions that indicate humiliation and torture. How does the court view such behavior – as part of the murder itself or as a circumstance that further aggravating criminal liability?
– Viewing this behavior as part of the murder itself and as a circumstance that further aggravating criminal liability is the same, because the aggravating circumstances are not an element of the crime, i.e. do not lead to a more severe legal qualification, but lead to the imposition of a higher penalty within the framework provided for in the law for the specific type of crime.
– Georgi did not die on the spot, but later in hospital as a result of the beating he suffered. How is the causal relationship between the actions of the accused and the death that occurred established and does the fact that death occurred hours or days later matter for the legal qualification?
– In the event of death occurring after beating, one of the most complex tasks is to distinguish the intent to cause death from the intent to cause bodily harm and the careless attitude towards the occurrence of death. As I indicated above**,** whether it is an intentional killing or a negligent causing of death, as a result of an intentional infliction of bodily harm, the means of committing the crime are taken into account (e.g. whether it is with bare hands or with some kind of weapon), the force, intensity and number of blows inflicted, the direction of the blows and the organs affected, the mechanism of the death (e.g. whether it is a direct consequence of the blows inflicted or is there some external factor that contributed to its occurrence), the behavior of the perpetrator before, during and after the act, etc.
– In this case, we are talking about a model of “pedophile hunters“ – organizing a meeting via the Internet, luring a targeted person, group attack, violence and filming. If it is proven that this was organized in advance, how would it affect the responsibility of each of the participants? And where, according to the law, does the possible intention to be exposed as a perpetrator of a crime end and the self-torture, torture and murder begin?
– The preliminary organization is important for the qualification of the crime when it is created with the aim of intentionally killing the victim. Then responsibility will be borne for premeditated murder, committed under the conditions of the other qualifying signs for which the charge was brought. As for the difference between the intention to be exposed as a perpetrator of a crime and self-torture, it is very simple – when exposure is sought, all collected evidence of the commission of a crime should be handed over to the prosecutor's office, which is the only state body with the authority to initiate criminal prosecution in connection with a committed crime. The court is the only state body with the authority to punish an established perpetrator of a crime. Taking independent action by citizens to punish an actual or subjectively perceived perpetrator of a crime may in itself constitute a crime.
– Under what conditions could a minor sentenced to imprisonment be released on parole and how does such a sentence affect his life in practice – education, socialization, psyche and his ability to return to society?
– A minor sentenced to imprisonment may be released on parole after actually serving at least 1/3 of the sentence. An additional prerequisite is that the convicted person has provided evidence that he has reformed. Reformation is assessed based on behavior while serving the sentence, his work/study commitment and the assessment of the risk of reoffending. The purpose of the punishment imposed on minor offenders is to re-educate the minor and prepare him for community service. Here it is worth noting something extremely important that the mass society does not seem to understand – The punishment is not imposed for the purpose of retribution, but for the purpose of correcting and re-educating the perpetrator to observe the law and good morals. As for minors, the legislator takes into account the peculiarities of age, such as the greater tendency both to succumb to negative influence and to correct and re-educate.
It is precisely in order to maximally ensure the correction, re-educating and preparing for public benefit in relation to minors that special rules are provided for the conduct of the criminal process against them,
as well as for the replacement and reduction of punishments in order to minimize the damage to the education, socialization, psyche and the opportunities of the minor to return to society. One of the most important rules is the limitation of the publicity of trials against minors, which is enshrined not only in the Bulgarian Code of Criminal Procedure, but also in numerous international instruments, as well as in the practice of the European Court of Human Rights.
It is worth mentioning here that the European Court of Human Rights has two key judgments against the United Kingdom, concerning criminal trials against children who have committed extremely serious crimes, and has accepted that the right to a fair trial was violated due to the participation of the media, the enormous national and international publicity and the handling of the cases with the procedural formalities of criminal trials against adults. In these cases, the argument of the British government that publicity protects justice was rejected as unfounded.
It is important to note, however, that the European Court of Human Rights recognizes the legitimate public interest in publicity, but emphasizes that in the event of a conflict between publicity and a fair trial, the latter takes precedence.
– Here we come to perhaps the most difficult question - what happens to these children after such a crime? Even after they serve their sentence, they will bear the label "murderers", while Georgi's life has already been cut short. What should the line between fair punishment, the responsibility of the perpetrators and the possibility for the minors to be reintegrated into society look like?
– To begin with, the moral assessment of what was done should be separated from the question of what the purpose of the punishment is. Because the death of the victim cannot be repaired by any punishment. His life is lost and the pain of his relatives cannot be compensated by how many years of imprisonment one or another accused will receive. That is precisely why punishment cannot be retribution - at least, because the death penalty has long been abolished in Bulgaria.
The Bulgarian Penal Code is quite clear regarding minors, stating that punishment is imposed on them “first and foremost“ with the aim of their re-education and their preparation for community service.
When carrying out imprisonment, the law again puts re-education and preparation for a life in freedom in the first place. This is not a manifestation of leniency. This is the philosophy of criminal law in relation to children. And it does not mean that a lighter punishment must necessarily be sought in the case of murder. In such a serious crime, the state has the obligation to establish the truth, to hold everyone responsible according to their specific participation and guilt and, if guilt is proven, to impose a punishment that takes into account the exceptional severity of the consequences.
This is especially important in the case of the murder in Plovdiv. At the moment we have accused, not convicted persons. According to the latest public data, the five minors remain in custody, as the court has accepted that there is sufficient evidence of their involvement in the crime for which they are being held criminally liable, and has taken into account the risk of committing another crime. But until the verdict comes into force, none of them are legally "murderers". This is a matter of the presumption of innocence and it is not canceled by public outrage, however understandable it may be.
And here, in my opinion, comes the most dangerous part of this case - the label. When a 14-, 15-, 16- or 17-year-old child is publicly transformed into a "murderer", "sadist", "deviant" etc., we are not simply describing the current accusation.
We begin to define the entire future identity of the person by the most serious act of which he is accused.
And the international standards for juvenile justice start from the opposite concept, considering juvenile justice as a system whose ultimate goal includes the reintegration of the child and the assumption of a constructive role in society. It is emphasized that public safety is a legitimate goal, but it is best achieved by respecting the principles of juvenile justice, and not by turning it into a purely repressive system.
And this has a very practical dimension. Reintegration does not mean forgetting. It does not mean telling the perpetrator: “You were a child, it happened - move on”. It means something much more difficult: to make this person understand what he has done, to bear the legal consequences, to take responsibility, to undergo psychological and social work and ultimately to be able to live without posing a danger to other people.
This is also the best response to society. Because if after ten or fifteen years we release a person who has formally served his sentence, but has remained socially isolated, without education, without a profession, without support, with a permanent criminal identity and with the feeling that society has rejected him forever - we have not solved the problem. We have simply postponed it. Therefore, in the case of these children, there must be three goals pursued simultaneously: responsibility, protection of society and change of the perpetrator. And none of the three should be sacrificed for the sake of the other.