Hunt or Be Hunted.

Author:Cioffi, Jeremiah
Position:Migrant hunters in Bulgaria - NOTES
 
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TABLE OF CONTENTS I. INTRODUCTION 1282 II. BACKGROUND 1286 A. Pre-Ottoman Rule and Ottoman Rule 1286 B. Post-Ottoman Rule, Soviet Rule, and Post-Soviet Rule 1289 III. ANALYSIS 1293 A. Illegality under the Constitution 1295 B. Illegality under the Bulgarian Criminal Code 1296 C. Bulgaria's Human Rights Duties 1298 D. How the European Union is at Fault 1300 IV. SOLUTION 1302 A. The Case against Migrant Hunters 1303 B. An ECtHR Case against Bulgaria 1305 C. EU Pressure on Bulgaria 1306 V. CONCLUSION 1309 I. INTRODUCTION

In February 2016, a Bulgarian man named Dinko Valev apprehended twenty migrants who had crossed into Bulgaria from Turkey. (1) Valev characterized the migrants as "terrorists, jihadists, and Taliban" without any evidence to support his claims. (2) Valev is a Bulgarian civilian with no ties to the military or law enforcement, and, as such, his actions in February were illegal. (3) However, he received positive and notable attention; his feat earned him several interviews, and many hailed him a "superhero." (4) Outgoing Bulgarian Prime Minister Boyko Borissov even thanked him for his work. (5) The international community has expressed its outrage at the migrant hunter's ostensible impunity from criminal charges, but no concrete punitive action has been taken against him. (6)

Valev's actions and those of other migrant hunters are merely symptoms of a larger disease: Bulgarian hatred for and fear of Muslims, especially Turkish Muslims, imbued into the Bulgarian collective psyche after over five hundred years of Ottoman rule. (7) To be fair, Bulgaria's position--geographically and culturally--is a complex one. As a member of the European Union (8) and the Council of Europe, (9) and signatory to the European Convention on Human Rights (ECHR), (10) Bulgaria has the privilege and the attendant duties of membership in the most progressive collective of nations on earth.

But Bulgaria is a young nation. (11) It has only been independent since 1878, (12) and since independence it has often been the de facto or de jure subject of other powers. (13) Most recently, it was a communist nation under de facto Soviet control. (14) The government has only been independent in the progressive sense since the Soviet Union's collapse in 1989. (15) However, Bulgaria's youth and failure to achieve post-Ottoman societal reconciliation do not give it the freedom to shirk its obligation to uphold human rights standards.

Further, because the European Union's reputation and legitimacy are built on valuing human dignity at the individual level, the European Union itself has a stake in Bulgaria's human rights record. (16) The European Union currently provides aid to Bulgaria to help tighten its borders. (17) While this type of aid is prima facie legal, the signatories of the ECHR, which include the twenty-eight EU members, (18) have both an individual and a collective duty to protect the spirit of that document and the principles and concrete rights enumerated therein. (19)

Both Bulgaria as an independent nation and the European Union as a collective have failed to uphold this duty. A plain reading of ECHR's Article Five illuminates this problem: "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save... in accordance with a procedure prescribed by law." (20) Bulgaria violates this article and abdicates its duty to uphold this Convention by silently sanctioning and even explicitly (21) allowing its civilians to illegally hunt and detain migrants. Citizens' arrests are illegal under Bulgarian domestic law; (22) in fact, there are harsh penalties (23) for those who deprive others of their liberty without the correct credentials and training. (24) Given that these migrant hunters are not depriving the migrants of their liberty in accordance with a procedure prescribed by law and that Bulgaria is not adequately prosecuting and condemning them or taking clear steps to address this human rights violation, Bulgaria is in violation of ECHR Article Five, in addition to its own domestic law. (25) It follows that the European Union as a collective has abdicated its responsibility to ensure that its member states uphold Article Five rights by failing to condemn Bulgaria in a tangible way while continuing to provide it aid to tighten its borders. (26)

Bulgaria makes up a large part of the land gateway to Europe. (27) The primary routes to Europe from the Middle Eastern countries affected by the migrant crisis involve crossing the Mediterranean Sea via sea-faring vessel or crossing on land through Turkey. (28) Taking the latter route through Turkey to its western border leaves migrants with two overland options. They can choose to travel west into Greece and contend with the masses of refugees--both those who traveled by sea and those who traveled by land (29)--stranded in poorly managed and overcrowded camps, and then continue north through Bulgaria, Macedonia, or Albania. (30) The alternative upon reaching Turkey's western border is to pass through Bulgaria. (31) For those seeking what they see as the refuge of Western Europe, the path through Bulgaria is more expedient and requires fewer illegal border crossings than the path through Greece. (32)

Given Bulgaria's location and necessarily large role in the migrant crisis, EU condemnation of Bulgaria's government-sanctioned xenophobia could send a strong and strategic message. Condemning Bulgaria in a tangible manner will send a resounding message to the world: the European Union is a moral and legal body that abides by international law and the agreements to which it is a party. (33) Further, condemnation of such acts may aid Bulgaria in its post-occupation (34) societal and ethnic reconciliation. (35) While it is a noble desire to see justice done at the lowest level, Bulgaria is guilty of allowing its civilian migrant hunters to escape punishment. (36) Political statements condemning xenophobia are not enough; the rule of law must be obeyed. Since Bulgaria is unwilling to legally condemn its civilians and uphold its human rights duties, the European Court of Human Rights (ECtHR) is the best forum in which to adjudicate this issue. This Note suggests that the most egregiously treated migrants should bring a case against Bulgaria and center the complaint on a failure to ensure Article Five ECHR rights.

Part II of this Note examines Bulgarian-Turkish history in an effort to understand xenophobia's prevalence in Bulgaria. Part III discusses current violations of Bulgarian law--and the surrounding context, including current relations with Turkey--and situates these violations in the wider EU context, to include an evaluation of abuses of the ECHR. It then explains the impact of allowing such human rights abuses to go unpunished. Finally, Part IV proposes a three-tiered solution, to include: Bulgaria prosecuting Valev; migrants bringing a case against Bulgaria in the ECtHR; and the European Union applying pressure on Bulgaria.

  1. BACKGROUND

    At the turn of the nineteenth century, Bulgaria's majority-Christian population characterized Ottoman rule as a period of "continual persecution" of non-Muslims. (37) A survey of the five-hundred-year Ottoman rule reveals that, while this understanding may be hyperbolic, non-Muslims were indeed relegated to second-class citizen status. (38) A study of the period before, during, and after Ottoman rule is crucial to understanding the current distrust of Muslim migrants.

    1. Pre-Ottoman Rule and Ottoman Rule.

      From 680 to 1396 CE, Bulgaria cohered as a nation. (39) Through periods of assimilation and struggle, it took on a national character, (40) largely informed by the Christian Church. (41) In 864, Boris I, Bulgaria's leader, converted to Christianity and made it the state religion. (42) As much a political move as a personal one, the decision brought unity to Bulgaria, (43) sparking decades of literary and cultural growth. (44) Before the Ottoman conquest, Bulgarian ranked with Greek, Latin, and Arabic as one of the most spoken languages in Europe. (45)

      In 1396, after a period of Bulgarian infighting and Ottoman growth, the Ottoman Empire conquered Bulgaria. (46) Cultural progress ceased, and the Bulgarian identity stagnated. (47) Modern Bulgarians refer to this period as "the Turkish Slavery." (48) The Ottoman Empire proclaimed itself an Islamic caliphate, and its leader a caliph, (49) and while it allowed Christians, Jews, and other non-Muslims to practice their religions, it did so from a place of superiority. (50) Relegated to dhirnmi (51) status, (52) non-Muslims had far fewer rights than Muslims; they could not wear the sacred color green, they could not build their places of worship as high as mosques, and they paid higher taxes. (53) Most notably, Christians were subject to the devshirme tax, which was one of the most contentious features of Ottoman rule. (54) Instead of being a traditional monetary tax, the devshirme was a human tax requiring select families to give their male children to the Ottoman Janissary Corps. (55) Forbidden to marry, the janissaries were trained to be the elite element of the Ottoman military. (56)

      Signed following the Crimean War in 1852, the Paris Peace Treaty required the Ottoman Empire to grant Christians rights equal with Muslims. (57) The Ottomans simultaneously proclaimed equality and kept several aspects of dhirnmi in place; for instance, the testimony of Christians was not admissible in court against Muslims. (58) Renewed by this continued inequality and the collective Slavic anger at the Ottomans, the Bulgarians rose against them in the latter quarter of the nineteenth century. (59)

      While Bulgaria eventually achieved independence with the help of the Russians, it came at a cost. In 1876, in retaliation for Bulgarian uprisings, the Ottomans and Bulgarian Muslims committed what is known as the Batak Massacre (60) in the village of Batak, where Turks...

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