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2006.05.02 Pleadings

2006.05.02 Pleadings

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MKapoustin

Page 1 of 25

March 14, 2006

To:

Republic of Bulgaria Supreme Administrative Court Fifth Section Chairman Administrative Case 8828/2005 May 2nd 2006 at 14:30 hrs.

Ref: Trial:

Respondent: Republic of Bulgaria Министерство на правосъдието Ул. „Славянска” № София, 1000

Pleadings
To The Chairman of the Court, На основание чл. 4 и 5 от ГПК Моля Председател да разпорежда превод от Английски на този ПЛЕДОАРИЯ от преводача по дело 8828/2005г. вещи лица Мариана Русева Радулова в.л. № 1118 по списъка на специалистите, утвърдени за вещи лица от Комисията по чл. 200ж ал. 1, ЗСВ, обн. Д.В. бр. 17/2004г.. Opening Statement For the record, the Applicant would underscore to this Court not to undervalue the complexity of the Applicants complaints and the seriousness of his allegations. Furthermore, the Court is request not to limit its judicial enquiry only to the exact words found in the provisions of item 4 of LC 4-277/02 and their application by the Respondent to the narrow question of direct discrimination in spheres of prison housing or employment when applied to prisoners who are not citizens of the Republic of Bulgaria. To so severely limit this judicial enquiry would ignoring the overwhelming evidence of how the Respondent’s orders to “isolate from all others” and words that of Respondent officials civil legal and human rights abuses that have resulted from the “incitement to discrimination” caused by item 4 of LC 4277/02. Sofia prison officials “a result of the Respondent’s use of two phrases. The first, that those not having Bulgarian nationality are, “to be isolated from all others” and the second, that “ this be a further injustice and would . only examine the This court is being asked to unravel 17 years of published and unpublished administrative acts issued by officials of the Respondent and unlawfully abusing the fundamental civil and human rights of hundreds of foreign citizens imprisoned in Bulgaria’s prisons since 1991. There is a real need for a full hearing of the facts, and that no matter how long this proceeding may take.

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Furthermore, the Court is requested to consider the Applicant’s complaints and arguments within the factual context of his having experienced more than 2 years of a brutal isolation in detention and the additional 9 years of the harsh conditions to be found at the Sofia Central Prison. The negative human and social consequences of such a life, the psychological affects of isolation at a maximum security penitentiary facility for nearly 11 years and the resulting separation from family and society are also not to be underestimated. Also, when examining the facts and collected evidence the members of this Court are requested to do so within the additional context of the now notoriously public fact of how determined Sofia prison officials can be when undermining the democratic principles of public transparency and the judicial accountability. The Court asked to recall the letters issued by the Respondent’s former Minister for Justice Anton Stankov Respondent officials in November and Deputy Minister Margarit Ganev in December 2004 and the August letter Deputy Director for the Main Directorate for the Execution of Punishments Plamen Kodstadinov and November 2005 letter of Director for the Ministry for Justice Directorate for International Legal Aid Ms. Vassilena Malev. Each of them defending the Sofia prison practice of official secrecy and incidents, the criminal indictments and recent dismissals that it is well documented fact that Sofia prison official historically refuse to explain their administrative acts to foreign prisoners. And if issuing a written administrative act or explanation, the written motives of prison officials are so vague or the facts so convoluted as to be incomprehensible to the reader. This particularly true when the party negatively affected by the administrative act is a foreign citizen who can neither reads, writes or speaks Bulgaria. The Court is also The withholding of information and official documents from prisoners by prison officials Concealment of official administrative documents, and lack of official accountability has been historically supported by officials of the Respondent, It now a matter of record that senior Sofia prison officials and certain official at the Main Directorate for the Execution of Punishments and formerly employed at the Sofia prison did actively engage in the concealment of how inhumanely they administered criminal sentences. Historically, Officials at the Sofia prison refuse to be bound by Bulgaria’s national laws. A fact known for years to those men imprisoned at the Central Prison having to suffer these abuses and only until recently a fact denied for decades by successive prior Bulgarian Ministers for Justice. Now allegations of official malfeasances such as corruption, abuse of power and brutality by prison officials are repeated on national and international television and the press. no longer the excusive province of only those imprisoned men suffering these violations of Bulgarian law and international treaties. imprisoned at the hands of men and women who believe they are above law. at the Sofia Central Prison, but . Allegations of and the national law by Sofia prison officials now proves to be the rule and not the exception. A Furthermore, The first and foremost among the reasons for the Applicant’s appearing before this Court is to have the Court it end a 17 year or more policy of unlawful discrimination imposed and maintained by past Ministers for Justice of Republic of Bulgaria and used by officials of the Sofia Central Prison to demean, demoralize, dehumanize, intimidate and even

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coerce money from foreign citizens. Officials at the Sofia prison have been conditioned and trained by the Respondent to refuse to anyone who is not a Bulgarian national or citizen his right to equal opportunity rights and protections under the Law for the Execution of Punishment. These same Sofia prison officials are responsible for forcing non-Bulgarian citizens to sign and accept legal documents in the Bulgarian language, a language they cannot possibly understand when first entering prison. Punishments are imposed and the confiscating of a foreign citizen’s property occurs without Sofia prison official or officials of the respondent once attempting to explain in a language other than Bulgaria what the legal and property consequences of these administrative acts [punishments]. Instead Sofia prison officials abandon their responsibility and rely on Sofia prison inmates to explain to nonBulgarian prison inmates their legal rights and obligations. The second reason for the Applicant’s appearing before this Court is the desire to have this Court imbue some transparency, accountability and judicial control into the activities of a collective administrative body of the Sofia prison and upon prison officials employed by the Respondent. The Applicant’s objective is to bring to an end the unlawful discriminations and other questionable administrative policies and practices of a Sofia prison collective administrative body organized under article 17 of the Law on the Execution of Punishments, hereinafter the “COMMISSION”. Individual voting member of this “Commission” have demonstrated a complete disregard for the constitutional and other legal limitations imposed by their non-judicial role. Sofia prison “Commission” members openly refuse to observe exactly and without alteration the national laws of Bulgaria. Historical Sofia prison officials have demonstrated a high degree of impunity towards any Bulgarian national law that might limits their power over a person deprived of liberty or the judicial procedures that seek to make prison officials accountable for administrative actions or inactions injuring the civil, legal or human rights of a prisoner. The third and final reason for appearing before this Court is a result of Respondent officials inter alia (1) refusing to admit that certain provisions of its administrative orders directly contravene tangible legal provisions of the Constitution and Bulgaria’s international treaties and Law for the Execution of Punishments when applying national laws differently to non-Bulgarian prison inmates, and; (2) insisting that the administrative acts of the Sofia prison and actions of its officials are not subject to either to the rules of public transparency or administrative judicial accountability or supervision. The Respondent refuses to identify to prisoners or their families the name, official position and responsibility of a public official employed at the Sofia prison and insodoing is intentionally obstructing justice solely to protect prison employees from possible civil prosecutions and personal liability for unlawful administrative acts. In several official letters to the Applicant and the Embassy of Canada, officials of the Respondent have insisted that the identities of administrative employees at the Sofia prison are protected by international treaties and Bulgaria “secrecy” laws. However, despite numerous demands the Respondent has been unable in subsequent letters to identify the laws or treaties cited by it. It is as a result of the above that the Applicant has been left with no other recourse except to turn to the Supreme Administrative Court for the Republic of Bulgaria. What will the Applicant Prove?

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During the course of this trial the Applicant will prove the policy and practice of Sofia prison officials of the Respondent openly demanding money in exchange for a non-Bulgarian citizen’s possible conditional early release. And that those families of imprisoned foreign citizens unable to secure the money demanded from them will discover to their great distress that a father, husband or son will be required to serve the full term of his imprisonment at the Sofia Central Prison. Their continued imposed beyond the minimum half sentence not the decision of a criminal court of law but instead a decision issued by a Sofia prison official or by the collective administrative body organized by several prison officials of the Respondent. If given the opportunity by this Court, the Applicant will also prove that a former Minister for Justice failed or refused to adequately investigate or report to the office of the prosecutor the documental evidence of possible corruption among members of the collective administrative body organized by several prison officials of the Respondent and involvement of justices of the Sofia City Criminal court. the and signals for corrutiotion. videnc a more uring prove to this the further evn mre disturbing policy and practice Even more disturbing is the fact that after having served the full term of his imprisonment a non-Bulgarian citizen can then expect to be forced to continue to remain in Bulgaria against his will and to endure an additional continued imprisonment at the detention facilities of the Ministry for Interior for the Republic of Bulgaria. This later humiliation of a continued imprisonment the result of administrative law and an administrative act issued not by criminal court of law, but instead

, for the securing of an unpaid civil or administrative debt, Bulgarian bailiffs or state executors are able to continue the imprisonment of a foreign citizen long after he or she has served the term of a criminal sentence. Simply and bluntly put, the Republic of Bulgaria is the only European Union candidate state whose officials finds it more convenient to rely on imprison and not international treaties [Conventions on the transfer of….Hague] as the preferred coercive measure for the collection of unpaid money obligations from non-Bulgaria citizens. Second, men and woman who only The Applicant repeats and re-alleges his original complaint in those parts complaining of unlawful Government of Bulgaria policies of direct and indirect discrimination according to nationality in the spheres of prison security, housing, supervised and unsupervised family contacts, employment and education opportunities and candidacy for possible conditional early release and as is and continues to be unlawfully practiced by officials employed by the Respondent at the Sofia central prison and the Main Directorate for the Execution of Punishments for the Republic of Bulgaria. These unlawful practices affecting the Applicant gainst both convicted and unconvicted criminal offenders who are not citizens of Bulgaria a.

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The Applicant repeats and re-alleges his original complaint in that part alleging the unlawful use of psychological and physical coercion against non-Bulgarian citizens y officials at the Sofia central prison employed by the Respondent and who in their capacity as officials have The Respondent Ministry for Justice for the Republic of Bulgaria bearing both legal and ethical liability for having permitted officials employed by it and Amended complaint dated 14.03.2006 and in support of that complaint submits the following pleadings. For clarity and as an aid to this Court the Applicant provides the following tables of citations, contents and index; Facts Not Open to Dispute 1.1. Not a Matter of Choice – Property Status, Foreign Law and Prisons – nonBulgarian citizens and their governments are unable to secure transfers under the Convention for the Transfer of Sentenced Persons 1.1.1.That the former Prosecutors General for the Republic of Bulgaria FILCHEV, after receiving his mandate in 1999, established a policy and practice whereby the Supreme Cassation Prosecutors Office was instructed to refuse all applications from non-Bulgarian prisoners requesting transfers under the Convention for the Transfer of Sentenced Persons if it was found by the prosecutors office that the applicant and his family had a property status [money] insufficient to pay off his financial debts to the Bulgarian State or a private Bulgarian citizens [see. 1.1.2.That the Supreme Cassation Prosecutors Office considers refusing a prisoner transfer request as [see above §1.1.1.] as a reasonable coercive measure for forcing non-Bulgarian citizens or their families to make a cash settlement of a contractual or administrative debt or fine owed to a Bulgarian citizen or the Bulgarian State. 1.1.3.That the Supreme Cassation Prosecutors Office makes no attempt to determine if the property status of a non-Bulgarian offender or his immediate family is such as would reasonably permit the making of a cash payment in settlement of a contractual or administrative debt or fine owed to a Bulgarian citizen or the Bulgaria State and without causing undue hardship. 1.1.4.That the Prosecutors General for the Republic of Bulgaria makes no similar demand for a cash settlement of foreign debts when it concerns a Bulgaria citizen requesting a transfer to Bulgarian under the same convention [Convention for the Transfer of Sentenced Persons], and that notwithstanding that the Bulgarian prisoner has similar unpaid contractual or administrative debt or fines owed by them to a foreign citizen or state. 1.1.5.That the reverse is true, the Government of Bulgaria and Prosecutors General for the Republic of Bulgaria have insisted before foreign governments that the transfer of its citizens from foreign prisons cannot be conditional on their first
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making cash settlement of what are impossible sums [see the case of Bulgarian medics in Libya and in force civil judgments of Libyan courts against Bulgarian citizens and awarded to families of HIV infected Libyan children, Government of Libya demanding cash settlement before agreeing to transfer Bulgarian citizens or allowing them to return to Bulgaria]. 1.1.6.That the former Prosecutors General for the Republic of Bulgaria FILCHEV, after receiving his mandate in 1999, also established a policy and practice whereby the Prosecutors General would refuse a foreign government’s request for transfer of its citizen [Convention for the Transfer of Sentenced Persons] if the criminal law of the requesting state and sentencing guidelines of its criminal courts are according to the personal opinion of Bulgaria’s Prosecutors General incompatible with Bulgarian law [see ] 1.1.7.That furthermore, the former Prosecutors General for the Republic of Bulgaria FILCHEV established a further policy and practice whereby Bulgaria’s Prosecutors General would refuse a foreign government’s request for transfer of its citizen [Convention for the Transfer of Sentenced Persons] it in the Prosecutors General’s personal opinion the prison system in the Requesting State and prison conditions are not as harsh as those found in Bulgaria [see also] 1.1.8.That as a result of the above, no transfer has been approved by Bulgaria’s Prosecutors General of a non-Bulgarian citizen convicted for crimes in Bulgarian if the prisoner is a national of a western democracy like Canada or a member state of the European Union and as a consequence the criminal laws and sentencing guidelines in the Requesting State because they are less severe are therefore incompatible with Bulgarian criminal law. 1.1.9.That as a result of the above, no transfer application is accepted by Bulgaria’s Supreme Cassation Prosecutors Office freomGeneral of a non-Bulgarian citizen convicted for crimes in Bulgarian if the prisoner less severe sentencing or prison conditions and all non-Bulgarian citizens having a property preventing the settlement so debts, are given no other alternative by the State of Bulgaria except to serve the full term of their imprisonment in a Bulgaria prison. And where, as a practical consequence thereof, they will be denied contact with their families and are opportunities that their own societies would otherwise offer for their eventual rehabilitation. 1.2. No Possibility of Parole – Nationality and Property - A Different Legal Status is Created for Non-Bulgarians Accessing Conditional Early Release 1.2.1.That in 2003 the Respondent Ministry for Justice published and notification entitled ““Information Brochure on the Rights and Obligations of Prisoners in the Sofia Prison Elaborated with the Financial Support of the European Initiative for Democracy and Human Rights Sofia 2003” [брошура от 2003 г. за вътрешните правила и процедурите по настаняване в местата за лишаване от свобода СЦЗ Замислена за разработване с Финансовата Поддръжка на Европейската Инициатива за Демокрация и Човешки права] and claims to have distributed this to all non-Bulgarian citizens.

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1.2.2.That on page 7 of the “брошура от 2003 г. за вътрешните правила и процедурите по настаняване в местата за лишаване от свобода СЦЗ Замислена за разработване с Финансовата Поддръжка на Европейската Инициатива за Демокрация и Човешки права” it is written that nonBulgarian citizens have no possibility to candidate for conditional early release [see article 70(1) Bulgarian Criminal Law] if their or their family’s property status is such as does not allow for them to make payments of money to the budget of the Respondent Ministry for Justice or to settle debts allegedly owed Bulgarian citizens. 1.2.3.That the only exceptions made by the Prosecutors General to the foregoing are those non-Bulgarian citizens; 1.2.3.1.Who have paid bribes and thereby secured from within prison what are forged bank and other official documents falsely showing their having settles having families whose property status is different from the majority and allows them to make payments of money to the budget of the Respondent Ministry for Justice or to Bulgarian citizens [see prison dossiers of ]; 1.2.4. 1.2.4.1. 1.2.4.2.. 1.3. Discrimination Policies Practiced at Sofia Central Prison - Facts Relevant to Unlawful Segregation According to Nationality – Denying of Access to Equal Opportunity Prison Housing and Fulltime Gainful Employment, Vocational Training and Higher Education and Access to Religious Worship 1.3.1.1.That the prison in the city of Sofia [see item 4 ORDER LC 4-277/2002 and item 14 ORDINANCE № 4/2001 and the words “изтърпяват наказание в затвора в София”] has attached to it three (3) types of penitentiary facilities [see the law according to article 8a(2) of the Law for the Execution of Punishments ]; 1.3.1.2.That the penitentiary facility located at № 21 General Stoletov in the city of Sofia is designated by the Respondent Ministry for Justice as a maximum security penitentiary facility to be attached to the prison in the city of Sofia [hereinafter referred to only as the Sofia “Central” Prison] and as designated exclusively for the isolation of repeat offenders [see article 12 of the Law for the Execution of Punishments and the words “Рецидивистите изтърпяват наказанието в ‘отделни затвори’ и затворническите общежития от закрит тип” in conj. with article 18(1) item 8 of ORDINANCE № 4/2001 and the words “Лишените от свобода рецидивисти изтърпяват наказанието в следните затвори и трудово-поправителни общежития от закрит тип затвора в гр. София”];

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1.3.1.3.That the Sofia Central prison, because of its designation by the Respondent Ministry for Justice as a maximum security penitentiary facility for the isolation of dangerous repeat criminal offenders, has as a result of that designation, the harshest and most stringent security measures and physical restrictions imposed on the movement of prisoners both on and off prison grounds [see article 44(5) of the Law for the Execution of Punishments and the words “В затворите и затворническите общежития за рецидивисти лишените от свобода се поставят при усилен надзор и охрана и работят само в района на съответния затвор и затворническо общежитие или на обособени обекти”] and that as a result of these security restrictions there are very few opportunities for any employment or no possibility for direct or frequent family contact. 1.3.1.4.That of the three (3) penitentiary facilities types attached to the prison in the city of city, the Sofia Central Prison is intended by the respondent to be the most psychologically oppressive and dehumanizing. 1.3.1.5.That presently there are approximately 800 individuals with criminal sentences in force and who have been assigned by officials of the Respondent to serve the term of their imprisonment at the Sofia Central Prison. 1.3.1.6.That of the 800 prisoners now servicing their terms of imprisonment at the Sofia Central Prison, more than 25% or some 108 non-Bulgarian citizens are isolated in the 10th Prisoners group and who are not repeat criminal offenders, not at least according to former Deputy Minister ofr Justice Mr. Mario Dimitrov [see Imitrov . 1.3.1.7.That according to the instructions of the Respondent, no more that 5% of these 800 prisoners can be first time offenders [see article The majority of these are considered dangerous repeat criminal offenders [recidivists]. 1.3.1.8.That presently there are approximately That all non-Bulgarian citizens 1.3.1.8.1.That the Sofia Central Prison is not permitted to have a prison population of convicted first time offenders of more than 5% and who have in writing agreed to serve the terms of their imprisonment at a maximum security prison accommodating dangerous repeat for the housing among at the that only with of its prison maximum security penitentiary facility attached to the prison in the city of Sofia and. That all non-Bulgarian citizens having criminal sentences are segregated from all nonBulgarian citizens housed at the 10th Prisones Group Isolation Role of Financial Status and Nationality That 37 of 104 is the Number of Non-Bulgaria Citizens Denied Candidacy for Possible Parole

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As of 31.12.2005, of 37 non-Bulgarian citizens formally eligible for conditional early release 36 were denied a review before the Sofia Prison Parole Commission by Prison Warden Dimitar Raichev and Deputy Warden Rumen Milev. Thereby no possibly existed for their candidacy for possible conditional early release before a Bulgarian court of law. That From 08.2004 to December 2005 Only 3 of 37 Non-Bulgaria Citizens with Debts Have had a Review by the Sofia Prison Parole Commission With the exception of the Applicant and possibly two others, none of 37 individuals identified in the evidence has ever be reviewed by the Sofia Prison parole COMMISSION. When asked why, Sofia Prison Warden Dimitar Raichev, Deputy Warden Rumen Milev and ИСДВР of the 10th Prisoners cell block have each cited item 4 of ORDER LC 4-277/2002 as creating a legal obligation for them as Sofia prison officials to use the possibility of early release to coerce money from all non-Bulgarian citizens and there families. According to them. There can be no parole review where the foreign offender or his family is unable to make payments. These threats are carried out Sofia Prison Warden Dimitar Raichev, Deputy Warden Rumen Milev and ИСДВР of the 10th Prisoners cell block in what has proven for the most part to be a vain attempt to exchange liberty under parole for settling of private financial obligations to a Bulgarian citizen or the state. That The Respondent Has In Fact Ordered the Sofia Prison Administration to Offer Condition Early Release to Non-Bulgarians Only in Exchange for Money According to the evidence on page 7 of the “Information Brochure on the Rights and Obligations of Prisoners in the Sofia Prison Elaborated with the Financial Support of the European Initiative for Democracy and Human Rights Sofia 2003 for Foreign Citizens” as authored by the Respondent, translated into 8 languages by the Respondent, and then printed and distributed by Sofia prison officials only to non-Bulgarians. In it on page 7 the Respondent imposes a financial criterion and the coercive measure of refusing conditional liberty anyone whose family cannot pay his financial debts. Sofia Prison Warden Raichev and Deputy Warden Rumen Milev are those who identify the debts to be paid and who create administrative obstacles to bar access to a judicial procedure. A fact borne out by this Court and not disputed by the Respondent who has examined each of the names of the 37 nonBulgarian citizen eligible for parole and the Sofia Prison Parole Commission PROTOCOLS starting in August 2004. That the Respondent has Appended the Criterion of Nationality and Financial Status to Article 70 of the Bulgarian Criminal Code The described coercive measure of liberty in exchange for debt is not a part of law [see Article 70 CC and article 17 Law for the Execution of Punishments]. This coercive measure and criterion of nationality and financial status has been administratively appended by the Respondent to article 70 CC and to article 17 Law for the Execution of Punishments. The nationality and financial criteria for parole are applied in an operative manner by Sofia Prison Officials who now demand money as well as the only legislated criterion of good behavior, an a positive attitude to work, and having completed half the term of imprisonment. Respondent Does Not Consider Discriminatory Criterion and Method of Coercion for Collecting Debts from Non-Bulgarian Citizens as Unfair or Unlawful The inability of a non-Bulgarian citizen’s family to settlement his financial obligations in Bulgaria is punishment of the prisoner. Who, notwithstanding how exemplary his rewarded by
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his requiring he serve the full term of his criminal sentence and beyond, the imprisonment of non-Bulgarian citizens continues after their release. On release from criminal liability, the Respondent then remands non-Bulgarian citizens to continued detention under arrest at facilities of Bulgaria’s Ministry for Interior until such time as they pay off their financial obligations in Bulgaria. That first time offenders who are required to serve their term of imprisonment in a prison of Sofia are accommodated according to the term of their sentence in one (1) of either of the two (2) other penitentiary facilities attached to the prison in the city of Sofia, id est light security [transitional] at “Kazichan” or medium security [open] at “Kremekovski” and as is required by the law according to article 12a of the Law for the Execution of Punishments. Both these penitentiary facilities are attached to the prison in Sofia. That as of 12.31.2005 there are 47 non-Bulgarian citizens and first time offenders eligible for relocation to either the light or medium security penitentiary facilities attached to the prison in Sofia. And that the Respondent refused to relocate them. That the Sofia Central Prison is the designed by the Respondent as the separate accommodation necessary for the strict control of repeat offenders [recidivist] as required by the law according to article 12(1) of the Law of the Executions of Punishments. That only those Bulgarian citizens who are repeat offenders [recidivists] are [see again article 12(1) Law for the Execution of Punishments] serving terms of imprisonment at the maximum security penitentiary facility attached to the prison in the city of Sofia, the Sofia “Central”. The only exceptions those citizens of Bulgaria and first time offenders who have requesting or secured work at the Sofia Central prison or are still awaiting relocation to the light or medium security penitentiary facilities attached to the Sofia prison. Those prisoners who are not citizens of Bulgarian citizens, like Bulgarian career criminals [recidivists], are also required to serve the full term of their imprisonment at the same maximum security penitentiary facility attached to the prison in Sofia, the Sofia “Central” prison. Officials and representatives for the Respondent repeatedly have insisted before this court that where and when it concerns the rights of those prisoners who not citizens of Bulgaria the Respondent has no legal obligation to observe Bulgarian law according to article 12a of the Law for the Execution of Punishments. Bulgarian career criminals [recidivists] and foreign citizens to be placed into the most severe prison environment. That those prisoners not citizens of Bulgaria and who are repeat offenders are accommodated together with first time offenders in the same [10th] Prisoners Group of the Sofia Central prison. Again, Officials and representatives for the Respondent repeatedly insist even before this court that where and when it concerns the rights of those prisoners who not citizens of Bulgaria the Respondent has no legal obligation to observe the law according to article 12 of the Law for the Execution of Punishments. That those prisoners [recidivists] to serve the term of their imprisonment at the maximum security penitentiary facilities [see again article 12(1) of the Law for the Execution of Punishments] are by virtue of their prior criminal convictions excluded or very limited in opportunities otherwise available to first time offenders according to the law in article 44(2)(3) and (4) and articles 65, 66, 66a, 66b, 68 and 69 of the Law on the Execution of Punishments.

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That those prisoners [first time offenders] serving their term of imprisonment at a penitentiary facilities of the light security [transitional] “Kazichan” or medium security [open] types at “Kremekovski” [see again article 12a of the Law for the Execution of Punishments] and attached to the prison in Sofia are permitted and in fact encouraged by the Respondent to enjoy the full benefits and opportunities provided for in law in article 44(2)(3) and (4) and articles 65, 66, 66a, 66b, 68 and 69 of the Law on the Execution of Punishments. That Officials and representatives for the Respondent have repeatedly insisted that where and when it concerns the rights of those prisoners who not citizens of Bulgaria they have no legal obligation to observe the law according to article 44(2)(3) and (4) and articles 65, 66, 66a, 66b, 68 and 69 of the Law on the Execution of Punishments. As a result and during the full term of their imprisonment, those prisoners who are not Bulgarian citizens are routinely denied equal access to any form of education, gainful employment, recreation or family contact under the same conditions permitted first time Bulgarian offenders.

satellite dishes computer etc.. That are according to the Respondent only accommodated at the maximum security penitentiary facility attached to the prison in the city Sofia, the Sofia Central at located at № 21 General Stoletov. That ALL non-Bulgarian citizens convicted of crimes in the Republic of Bulgaria are also isolated from all Bulgarian citizens and housed only in the 10th Prisoner group of the maximum security penitentiary facility attached to the prison in the city Sofia at located at № 21 General Stoletov where they are fed separately, exercised separately and work separately.

What Is Not A Subject, A Legal Controversy or Fact in Dispute Before this Court? The Applicant, after having heard the opening statements made on the Record by the legal representative for the Respondent and the Supreme Administrative Prosecutors Office and after familiarizing himself with a number of administrative cases having similar complaints defended by equally as incompetent and legally naive applicants, finds it prudent to clarify to this Court what is not being legally challenged [see inter alia Supreme Administrative Court case № 566/2004 Haralampinev Kolarov (Ангел Харалампиев Коларов) v. Ministry for Justice/ORDER № LC-4-277/02 RULING № 6415 issued on 2004.07.07 by the 3 Member Membership of the Fifth Division Judge Zaharinka Todorova (Захаринка Тодорова) Reporting for the court]. The reason for this is that there appears some confusion on what it is the Applicant claims and is asking for from this court. Not a Subject Matter of this Complaint The Whole of ORDER № LC 4-277/2001

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The present legal controversy raised by this Applicant does not have as its subject matter a challenge as to the lawfulness of the whole of ORDER № LC 4-277/2001. The complaint of the Applicant KAPOUSTIN concerns only item 4 of ORDER № LC 4277/2002 and then only those specific provisions, words or phrases found there and identified by the Applicant as contravening tangible provisions of national law and incompatible with the legislated purpose of the Law for the Execution of Punishments inter alia, the instructions issued by the Respondent for the forced isolation of the Applicant and all non-Bulgarian citizens not only from all members of Bulgarian society but also from all opportunities afforded to members of Bulgarian society in law and at places of work, housing, education, religion and finally a right to liberty. Not Part of the Present Legal Controversy Issuing of ORDER LC 4-277/2002 The Applicant has not raised a challenge and considers there to be no legal controversy over the right and exclusive jurisdiction of Bulgaria’s Minister for Justice to issue ORDER LC 4277/2002 or others like it. The Applicant acknowledges the issuing of such an ORDER to be within the constitutional and legislated competence of Bulgaria’s Minister for Justice. Who, according to article 15 of the Law for the Execution of Punishments has the positive legal duty as Bulgaria’s Minister for Justice to ex officio specify what penitentiary facilities are to accommodate those groups of prisoners having the legal criterion as defined in articles 12, 12a and 12c of the Law for the Execution of Punishments. Housing of Indigents and non-Resident Aliens at a Prison in Sofia As a result of these constitutional and legislative powers there can be no legal controversy on Bulgaria’s Minister for Justice decreeing that any prisoner, Bulgaria or non Bulgarian citizen and having no permanent residence in the Republic of Bulgaria, is be remanded to a penitentiary facility attached to “a prison in the city of Sofia”. However, and as a point of law, the Court is requested to turn its close attention to the national law requiring according to article 8a(2) Law for the Execution of Punishments that there be attached to each prison a penitentiary facility of the light [open], medium [transitional] and maximum security [closed] types. These are three (3) very different and distinct types of facilities that according to the same national law article 8a(3) of the Law for the Execution of Punishments are legislated into existence by Bulgaria’s parliament for the express purpose of creating very different physical security, living conditions, reforming and psychological impact on not only the prisoner but also on his family. Furthermore, the court is requested to turn its attention to a point of fact, that there are 3 penitentiary facilities attached to “the prison in the city of Sofia”, these are the minimum security penitentiary facility at Kazichen, the medium security penitentiary facility at Kremekovski and the maximum security penitentiary facility at Sofia Central Prison. Of these the one designated to house only repeat offenders and whose prison population is prohibited by item 7(2) of ORDER LC 4-277/2002 to be more than 5% first time offenders is the maximum security penitentiary facility at Sofia Central Prison. It now a notorious public fact that the Sofia Central Prison is the harshest and most corrupt prison in Bulgaria. Living conditions here are intentionally hard and according to article 12a(1) of the Law on the Execution of Punishment intended only for criminals who refuse to be rehabilitated and so need to be isolated at a maximum security penitentiary facility [closed type]. The Applicant and 100 of the 104 non-Bulgarian citizens isolated at the Sofia Central Penitentiary are all first time offenders.
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Internal Order of For Housing Assignment of A Prisoner Finally, the present controversy is not a legal challenge as to the lawfulness of an internal order [“законосъобразността на вътрешнослужебен”] issued by an official of the Respondent for the movement of the Applicant or an other prisoner from one penitentiary facility to the other and therefore ultra vires the competence of Supreme Administrative Court. See again the citation Supreme Administrative Court RULING № 6415/2004.07.07. where Reporting Madam Justice Saharinka Todorov [ЗАХАРИНКА ТОДОРОВА] writes; “Съдът не разполага с правомощия по въпроса за превода на лицата, лишени от свобода от едно заведение за изтърпяване на наказанието, в друго такова. На този извод сочи самата редакция на разпоредбата - това може да се осъществи само с акт на компетентен орган към МП, по целесъобразност и то ако се установи наличието на "важни съображения". В този случай, по волята на законодателя, съдът не разполага с правомощия по контрол, това е специфична дейност, предоставена по закон изключително в дискреционната власт на МП, в частност - на ръководителя на ГД "Изпълнение на наказанията". The Applicant does not challenge the 1998 order for his relocation from arrest at the National Investigative Service maximum security arrest facilities at G.M. Dimitrov where he was keep in solitary confinement for the better part of 2 years to the maximum security penitentiary facilities at the Sofia Central Prison where he was keep in an isolation cell for the next 6 months. an additional. Such complaints not within the jurisdiction of this court. Law - Controversy Over Legal Obligations of the Respondent That prison officials of the Respondent are not under any legally binding obligation to allow prisoners who are not citizens of Bulgaria to have access to the provisions of law found in article 12a and articles 44(2)(3) and (4) and articles 65, 66, 66a, 66b, 68 and 69 and 74(1) items f, g, h and i of the Law on the Execution of Punishments as is legally required and under the same conditions as citizens of Bulgaria. That the prison commissions formed under article 17 of the Law for the Execution of Punishments are not under any legal binding obligation to allow prisoners who are not citizens of Bulgaria to have access to a judicial procedure for reviewing their candidacy for possible conditional early release under the same conditions as prisoners who are citizens of Bulgaria. That prison commissions formed according to under article 17 of the Law for the Execution of Punishments are not independent of and not legally answerable to the Respondent or to any judicial or administrative oversight body. That the Respondent makes no distinction according to prior criminal record when are made That, according to other data, there are cated The abovecited laws and item 4 of ORDER LC 4-277/2002 have no provision creating a positive legal duty requiring Bulgaria’s Main Directorate for the Execution of Punishments and the administration of the prison in Sofia to only accommodate at the maximum security penitentiary facilities attached to the prison in Sofia all those prisoners having no permanent residence in Bulgaria [homeless], notwithstanding their status established according to the criterion of only.

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Furthermore, the abovecited laws and item 4 of ORDER LC 4-277/2002 have no provision creating a legal negative restriction prohibiting Bulgaria’s Main Directorate for the Execution of Punishments and the administration of the prison in Sofia from accommodating those prisoners having no permanent residence in Bulgaria [homeless] in the light to medium security penitentiary facilities attached to the prison in the city of Sofia. However, the Court is requested to pay close attention to the fact that there are three (3) very different types of penitentiary facilities attached to the Sofia prison and that the text found in item 4 of ORDER № LC 4-277/2001 “persons who are not citizens of Bulgaria suffer the term of their imprisonment at a prison in the city of Sofia” [“лицата, които не са български граждани изтърпяват наказание в затвора гр. София” see former deputy Minister Mario Dimitrov Ministry for Justice Letter № 94-M-147 dated 13.09.2004] does not have a provision specifying or imposing any negative restriction at which of the three (3) facilities [Kazichen, Kremekovski and Sofia Central] non-Bulgarians may or may not be accommodated. Or, more specifically, there is no provision in item 4 of ORDER № LC 4277/2001 ordering ALL non-Bulgarian citizens to be housed ONLY at the maximum security penitentiary facilities for recidivists as attached to the Sofia prison and designed as the “CENTRAL PRISON” [address № 21 General Stoletov Sofia]. What are the Legal Controversies and Challenges Brought by the Applicant Unlawfulness The Applicant asserts that text “ provision of it is unlaw Indirect Discrimination Law Bulgaria’s Constitution, its numerous international treaties and the new Law for Protection Against Discrimination each have very clear provisions creating negative restrictions against the practice of any form of discrimination where rights or obligations are determined or created solely according to criteria of ethnic or nation origins, citizenship and property, public or legal status. Legislated exceptions are permitted and found only in cases necessary for the protecting of the rights of others. But limitations imposed on right derogation of a certain right never to the detriment of the rights of another group [inter alia non-smokers rights v. smokers rights, the right of access for the physically handicapped]. The Bulgaria’s Constitution and several national laws, contain tangible legal provisions creating a positive legal duty requiring Bulgarian Public [Correction] Officials to observe, ex officio, and under penalty of law, all national laws exactly as they are written and to report to the competent Bulgarian investigative and disciplinary authorities any published or unpublished order issued to them by a Public [Prison] Official of higher office if the a provision of the order contravenes a tangible legal provision of Bulgarian national law and its implementation would be incompatible with the purpose of a law [Law for the Execution of Punishments] and would cause metal, physical or property injury or create undue or unnecessary hardship or distress the person whose legal or civil rights are being derogated, denied or abused as a result of a specific provision or order. The Bulgaria’s Constitution and its Criminal Code do not poses any provision creating a separate legal status or separate rights or obligations for non-Bulgarian citizens convicted for the commission of a crime in Bulgaria. Accordingly non-Bulgarian convicts and Bulgarian convicts are to have the same rights, protections, opportunities and obligations as defined in the Law for Execution of Punishments and other relevant national law.

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Article 70 of Bulgaria’s Criminal Code has no legal provision setting a financial or nationality criterion necessary for the determining of a candidate for conditional early release. There is no legal provision for the collection of civil or administrative debts by officials of the prosecution or prison officials of the Respondent Ministry for Justice before allowing a convict to candidate for parole. Subjective criteria inter alia conduct of the convict, attitude to work, continued threat to society and if the remaining term of imprisonment speaks to the nature of the crime are to be determined solely during an open and adversarial proceeding before a court law having competent jurisdiction. The Sofia Prison Warden is an appointee of the Minister for Justice deriving his plenary powers from a “power of attorney” issued by the Minister for Justice. According to Article 17 of the Law for the Execution of Punishments, the Sofia Prison Warden forms twice monthly a collective administrative body known as the “Commission” and whose voting members are subject to the orders and supervision of the Respondent. The Bulgaria’s Constitution does not endow this Commission or any of its members with the power to interpret criminal sentences or law, its function solely administrative. According to Article 120 the Constitution Only Article 12g of Bulgaria’s Law for the Execution of Punishments [Чл.12в. (нов,ДВ,бр.103 от 2004 г.) Чужденците, които нямат разрешение за постоянно пребиваване в Република България, изтърпяват наказанието лишаване от свобода в затвори, поправителни домове и общежития, определени със заповед на министъра на правосъдието.] the only provision of Bulgarian national law making a reference to nonBulgarian citizens. The provision permits Bulgaria’s Minister for Justice to identify the location of three distinct types of facilities [prison, correctional home and general hostels] attached to a penitentiary a particular facility are to accommodate non-Bulgarian citizens according to Art. 12a of the same law [Law for the Execution of Punishments]. house are to prisons , distinction as to The incarceration of all first time non-Bulgarian [foreign] citizens only in a Bulgarian maximum security penitentiary facility when convicted to prison terms in Bulgaria is not a legislated part of any provision found in the Bulgarian Criminal Code or Law for the Execution of Punishments. Therefore, any psychological torment, physical or other forms of distress and hardship inherent to incarceration in a Bulgarian maximum security prison are not incidental [secondary consequences] to the imposing of a lawful criminal sanction [see Bulgarian Criminal Code] on a first time non-Bulgarian offender [foreign citizen] and therefore cannot be justified in the absence of a national law or in individual cases a criminal sentence explicitly imposing such conditions. It is well documented [see Bulgarian Helsinki Report 2002 and European Commission] that foreign citizens convicted for crimes committed in Bulgaria are treated as illegal aliens equal in rank to terrorists or traitors against the Republic of Bulgaria [see “Terrorists and Tourists Provision” art. 20 ORDINANCE 4 issued on 29.03.2001 by the Respondent Minister for Justice RB, State Gazette issue № 35 06.04.2001] and as a result suffer greater direct and indirect discrimination within Bulgaria’s correction institutions to the point of their almost complete elimination from housing, employment

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and educational opportunities, and granted grossly inadequate access to healthcare and legal assistance or competent translators while in arrest and prison. The Applicant asserts in his complaint that from 1991 the Ministry for Justice for the Republic of Bulgaria has responded with gross indifference towards the failure of prison officials to observe the equal legal rights of imprisoned non-Bulgarian citizens and has ignored completely the inherent humanitarian concerns associated with an imprisonment that as a practical matter will deny to non-Bulgarian citizens regular contact with their families and no contact at all with the society or culture they ultimately must return to. When issuing specific instructions in item 4 of ORDER № LC 4-277/2001 ordering that non-Bulgarians be “isolated” from Bulgarians, the Respondent has attributed a “lesser legal and human status” to those men and woman who by accident of birth happen not to be Bulgarian citizens. Indoingso, the Respondent has clearly contravened numerous tangible provisions of Bulgaria’s national laws and its international treaties. It unlawful to attributing a “lesser status” to those non-Bulgarian citizens who are against their will and that of their home states are required by the Prosecutors General for R.B to serve the full term of their criminal sentences within a Bulgarian correctional institution [see inter alia Letter № 12687/2000 issued on 19.03.2004 by the Prosecutors General for the Republic of Bulgaria through the Respondent Ministry for Justice Bulgaria to the Ministry for Justice for Canada rejection of Government of Canada transfer prisoner transfer request and Letter № 16992/2004.VI issued on 20.07.2004 by the Supreme Cassation Prosecutors Office on Polish government request for prisoner transfer and RULING № 7752/2003/184424/31.08.205 for ending liquidation proceedings issued by the Agency for State Takings R.B.] Therefore, the present legal controversy must test the lawfulness of those specific instructions found in [see item 4 ORDER LC 4-277/02] or attributed to arising from ORDER LC 4-244/2001 [see Letter № 10691/04 УП from Supreme Cassation Prosecutor K. Vulcheva the Respondent’s ORDER № LC 4-277/2001 and page 7 “Information Brochure on the Rights and Obligations of Prisoners in the Sofia Prison Elaborated with the Financial Support of the European Initiative for Democracy and Human Rights Sofia 2003 for Foreign Citizens”] and directly or indirectly creating distinctly different and visibly unequal legal and human rights for a non-Bulgaria and equally visible fewer material [financial] obligations or legal and human rights concerns of the Respondent towards men and women who are not Bulgarian. The present legal controversy is henceforth a constitutional question requiring the Supreme Administrative Court for the Republic of Bulgaria to establish the Respondent’s observance of an important legal principle and fundamental civil right found in Article 6§2 of the Constitution for the Republic of Bulgaria and enshrining the words that everyone “shall be equal before the law”. This legal controversy can only properly be resolved by this Court’s application of tangible and specific legal provisions of the Constitution for the Republic of Bulgaria and Bulgaria’s international treaties to not only the written instructions found in item 4 ORDER № LC 4-277/2001 but also the direct or indirect negative consequences proven to be a result thereof. The important question before this Court concerns the Respondent’s application and observance of these tangible legal principles and the legal, financial and ethical obligations of the Respondent to respect the equal rights of non-Bulgarian offenders

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[foreign citizens] to enjoying the protections and opportunities afforded prisoners under Bulgaria’s national laws and its treaties. Unsettled and yet to be determined questions of fact are if the forced isolation of ALL foreign citizens in a maximum security prison environment is a security measure compatible with Bulgaria’s Law for the Execution of Punishments and somehow the Respondent can justify so extreme a measure by some legitimate security concerns or other needs of the Respondent requiring the isolation of ALL non-Bulgarian citizens and denying [education, gainful employment at minimum wage both on and off prison grounds, reduction in the term of their sentence, unsupervised leaves to maintain social contact with their family and conditional early release or probation under the same conditions as Bulgarian citizens] or derogating from other legal rights or opportunities provided for in Bulgaria’s national laws and equally available to non-Bulgarians.

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Clarifications of Complaint’s Subject Matter The Applicant more accurately defines the Complaint’s subject matter to be against those instructions [unlawful and discriminatory] found item 4 Ministry for Justice ORDER № LC -4 -277/2001 and other legally offensive provisions found therein or as may otherwise be published or unpublished and issued by the Respondent Ministry for Justice for determining different rights or obligations and placing special limitation on existing civil or legal rights solely according to the criteria of non-Bulgarian nationality [citizenship] or according to the financial status of a foreign citizen [inter alia legal opportunities under article 70 CC are determined by an offenders nationality and his financial liquidity]. The Applicant complains against item 4 of Ministry for Justice ORDER № LC -4 -277/2001 and the legally offensive provision instructing officials of the Respondent to place those persons “които не са български граждани…” in “изолирано от останалите по местоживеене и месторабота" [see attached Letter № 8319/16.09.2004 from Main Director Execution of Punishments Director Peter Vassilev]; The also complains against the legally offensive provision or clause in Ministry for Justice ORDER № LC -4 -277/2001 with words instructing officials of the Respondent at the Sofia prison that persons “които не са български граждани…не могат да бъдат включвани в общообразователно обучение, курсове за придобиване на специалност или за повишаване на квалификация." [see again Letter № 10691/04 УП from Supreme Cassation Prosecutor K. Vulcheva] The Applicant also complaints against the legally offensive provision or clause in Ministry for Justice ORDER № LC -4 -277/2001 announced by the respondent on page 7 of the “Information Brochure on the Rights and Obligations of Prisoners in the Sofia Prison Elaborated with the Financial Support of the European Initiative for Democracy and Human Rights Sofia 2003” prepared and distributed by the Respondent Ministry for Justice and informing non-Bulgarian offenders [foreign citizens] that Bulgarian national law [article 70 CC] determining “conditional early release will not be apply for those [non-Bulgarian citizens] offenders who have unpaid debts” [see again Information Brochure on the Rights and Obligations of Prisoners in the Sofia Prison Elaborated with the Financial Support of the European Initiative for Democracy and Human Rights Sofia 2003 ]. Proceeding on the above and according to the legal maxim non jus ex regula, sed regula ex jure – that the law does not arise from the rule, but the rule from the law, the Applicant alters the legal controversy of his original Complaint The Applicant’s complaints now revolve around two controversies (1) item 4 of Ministry for Justice ORDER № LC -4 -277/2002 where the Respondent has provided instructions for the different treatment and application of Bulgarian nationals law to non-Bulgarian offenders [foreign citizens] to accommodated in Bulgarian prisons, and (2) the interpretation and application by Sofia Prison officials of Ministry for Justice ORDER № LC -4 -277/2002, and the resulting policy of refusing to observe their ex officio remedial obligations to nonBulgarians as required according to what are otherwise imperative legal provisions found

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under the Law for the Execution of Punishments [see again Letter № 10691/04 УП from Supreme Cassation Prosecutor K. Vulcheva. As a result, the Applicant insists that the instructions stipulated in item 4 of ORDER № LC -4 -277/2002, the interpretation of those instructions by officials of the Respondent and the notification on page 7 of the Information Brochure on the Rights and Obligations of Prisoners in the Sofia Prison have each contravened tangible legal provisions of the Constitution for the Republic of Bulgaria [Articles 6, 26§2, 53§1, 57§1, 58and 60(1)] and numerous provisions of Bulgaria’s international treaties [see inter alia, Articles 3 and 14, European Convention on Human Rights; Articles 3, 7, 20 and 26 International Covenant On Civil And Political Rights (U.N.T.S. No. 14668, vol 999 (1976), p. 171.); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46 signed by Bulgaria 10 Jun 1986 16 Dec 1986;; Article 1, Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as Adopted by General Assembly resolution 3452 (XXX) of 9 December 1975;.] and are also incompatible with the legislated purposes of articles 2(2), 8(2), 12a, 12g and 14(4), Bulgaria’s Law for the Execution of Punishment and articles 4(1) and 4(3), Bulgaria’s Law for Protection against Discrimination. Furthermore, the Constitution and Bulgarian national law regulating the issuance of administrative orders, decrees or ordinances demands that the Respondent Ministry for Justice for the Republic of Bulgaria or the person appointed by him, must ex officio and ex jure before issuing any administrative act or order, insure its compliance with the Constitution for the Republic of Bulgaria, and those normative acts of a higher power and Bulgarian national laws. Clearly that is not the case here. JUDGMENT SOUGHT Accordingly, the Applicant’s Petition to this Court is for it to apply article 12 items 3 and 4 of the Law for the Supreme Administrative Court and immediately sentence the Respondent to; 1. Remove the legally offensive and unlawful written instructions found in item 4 of ORDER № LC -4 -277/2002, the forced isolation at a maximum security prison solely according only to the criteria of an offender’s [prisoner’s] nationality cannot be legally justified and the Respondent to be ORDERED to immediately house non-Bulgarian citizens according to the demands of Bulgarian national law and at any of the three different accommodations of open, transition and half-open facilities presently attached to the Sofia prison and according to their individual term of imprisonment [Art. 12a and Art. 12g Law for the Execution of Punishments] and their prior criminal record [Art. 12 Law for the Execution of Punishments]; 2. End Sofia prison administration practices arising for a legally wrong interpretation of item 4 of ORDER № LC -4 -277/2002, the isolating of non-Bulgarian citizens from opportunities in education, full-time supervised [guarded] and unsupervised [unguarded] employment at minimum wage on or off prison grounds and social contacts with their families through unsupervised leaves cannot be legally justified

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solely according to the criteria of an offender’s [prisoner’s] nationality. The Respondent must be ORDERED to immediately allow non-Bulgarian citizens equal opportunity to access education, full time employment and social contact with family members under the same conditions as Bulgarian citizens have at the same Bulgarian prison; 3. Remove the legally offensive and unlawful criteria established by the Respondent on page 7 of the Information Brochure on the Rights and Obligations of Prisoners in the Sofia Prison, the determining of different rights or opportunities in national criminal law cannot be legally justified solely according to an offender’s [prisoner’s] nonBulgarian nationality or his property and income status or that of his family. The Respondent must be ORDERED to instruct officials at the Sofia Prison to end their unlawful and psychologically distressing and inhumane practice of attempting to coerce payment of financial obligations from non-Bulgarian offenders [prisoners] or their families by determining their candidacy for a possible reduction in the term of their imprisonment [see art. 17 Law for the Execution of Punishments in conj. with formal criteria as established in art. 70§1 CC conditional early release] solely according to their financial status or their family’s ability to pay off debts inter alia fines, or civil or administrative financial obligations to Bulgarian citizens or the State. Irrefutable Facts There can be no factual dispute over Applicant claims that according to of item 4 ORDER LC 4-277/02 the Respondent Ministry for Justice has issued instructions ordering that; 1. All first time and repeat non-Bulgarian criminal offenders [foreign citizens] be placed under severe physical coercion by their incarcerations in Bulgaria only at the maximum security penitentiary facility attached to the Sofia prison; 2. While incarcerated they are to be subjected to isolation and the mental degradation and unnecessary psychological torment associated with being “isolated from all the others”; There can be no factual dispute over Applicant claims that a vicarious affect of item 4 ORDER LC 4-277/02 is to incite senior officials at the Main Directorate for the Execution of Punishments and Sofia prison officials of the Respondent Ministry for Justice to issue instructions ordering that; 3. Non-Bulgarian citizens are to be denied access to educational opportunities, family contacts through regular unsupervised leaves and are not to be allowed supervised [guarded] or unsupervised [unguarded] employment off prison grounds; 4. Non-Bulgarian citizens with no prior criminal record and good behavior but insufficient property or income to settle contractual or other debts are not to be allowed access to an administrative [see again art. 17 Law for the Execution of Punishments] or judicial [see art. 415(1) item 2 CCP] procedure for reviewing of their continued imprisonment beyond the maximum half term as envisioned in criminal law [art. 70§1 CC]; Discussion The Controversy

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There can be little debate that the nationality criteria appearing as a provision of item 4 in Ministry for Justice ORDER № LC -4 -277/2001 is discriminatory in nature. However, the present legal controversy and complaint of the Applicant does not concern the Respondent’s discretionary legal right to issue instructions on the housing of nonBulgarian citizens [see Art. 12g Law for the Execution of Punishments] at a prison in Sofia if they have no legal residence in the Republic of Bulgaria. Therefore, the legal controversy to be discussed by this tribunal must center upon the unlawfulness of that part of this provision having as its stated purpose and physical objective the confining all non-Bulgarian citizens only to maximum security penitentiary facilities in the Republic of Bulgaria and isolating them from everyone else. The detritus negative physical and psychological affects resulting from years of such isolation cannot be underestimated as a consequence or avoided as a consideration when this Court reviews the constitutional question of if this provision of ORDER LC 4-244/01 is compatible with the legislated and stated remedial intent of the Law for the Execution of Punishments [see articles 2(2), 8(2), 12a, 12g and 14(4), Bulgaria’s Law for the Execution of Punishment]. The Applicant’s complaint asserting that the decision by officials at the Main Directorate for the Execution of Punishments to confine non-Bulgarian citizens only to the maximum security penitentiary facilities attached to the Sofia prison and isolating them there cannot be legitimized by the Respondent as having any lawful purpose. No Lawfully Purpose At no time has the Respondent Ministry for Justice invoked any particular security reasons requiring it to isolate non-Bulgarian first time offenders [foreign citizens] in a Bulgarian maximum security prison. The Respondent has at no time mentioned why it was not possible to revise the accommodations of non-Bulgarian [foreign] prisoners so as to satisfy the requirements of law [see articles 12a and 12g Law for the Execution of Punishments] and provide them with adequate possibilities for family contact and a sensible occupation or education both on and off prison grounds during the term of imprisonment. Furthermore, the Respondent’s instructions for isolation of foreign citizens only in maximum security penitentiaries cannot be legitimized as a reasonable limitation demonstrably necessitated by the fact that the incarceration concerns a “non-Bulgarian citizen” and not a Bulgarian citizen. The Ministry for Justice for the Republic of Bulgaria knows only to well that according to the Basic Principles for the Treatment of Prisoners all prisoners retain their human and civil rights and fundamental freedoms as set out in the Universal Declaration of Human Rights, and, where the Bulgaria State is a party, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its Optional Protocol. Non-Bulgarian offenders [foreign citizens] must be given opportunities and rights equal to their Bulgarian counterparts as is setout in Bulgaria’s national laws. Therefore, the Respondent Ministry for Justice cannot lawfully or reasonable justify subjecting an entire and distinct group of prisoners to unnecessary hardships and
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avoidable constraints during the term of their incarceration and solely on account of their non-Bulgarian citizenship, [see 1992, explanatory notes United Nations Human Rights Committee, “[N]ot only may persons deprived of their liberty not be subjected to [torture or other cruel, inhuman or degrading treatment or punishment]…but neither may they be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons. Persons deprived of their liberty enjoy all the rights set forth in the [ICCPR], subject to the restrictions that are unavoidable in a closed environment”]. Explanations offered by senior officials and former Deputy Minister Mario Dimitrov, that; “Това е продиктувано от съображение за улесняване на контактите им с дипломатическите представителства, организиране на свижданията им с близките, които идват от чужбина, осигуряване на преводачи и пр.” [see former deputy Minister Mario Dimitrov Ministry for Justice Letter № 94-M-147 dated 13.09.2004] and therefore isolation in a maximum security prison attached to the Sofia prison is for the benefit of foreign citizens is not only lame but legally and factually unsupportable. The explanations offered by Sofia prison officials to consular officials of the Governments of Canada, the United States and states of the European Union that the placing of their nationals in a maximum security penitentiary is a consequence of national law is, as we have seen, legally unsupported. No such Bulgarian national law exists and only it item 4 Ministry for Justice ORDER № LC -4 -277/2001 that makes a distinction between the rights of non-Bulgarian and Bulgarian prisoners. Attempts by Sofia prison officials to excuse the housing of foreign citizens only in maximum security facilities as being necessitated by the government of Bulgaria’s difficult financial circumstances and that therefore is no other option for the Respondent except to incarcerate them [foreign citizens] exclusively in a maximum security prison facility is legally inadmissible [see Mukong v. Cameroon (No. 458/1991) (August 10, 1994), U.N. Doc. CCPR/C/51/D/458/1991. Minimum requirements regarding floor space, sanitary facilities, provision of food, etc., must be observed, "even if economic or budgetary considerations may make compliance with these obligations difficult") and not true since Bulgarian citizens are routinely distributed between the other two penitentiary facilities connected to the Sofia prison [see Sofia prison COMMISSION “PROTOCOLS” (Minutes) from August 2004 to October 2005, transfers]. According to Letter № 4502 issued in on 30.05.2005 by the Main Directorate for the Execution of Punishment to the Respondent Ministry for Justice, there is no administrative ACT or ORDER creating a financial criteria applying to non-Bulgarian citizens and requiring them to make payments of money as a precondition to candidate for conditional early release according to Bulgaria’s criminal or correctional law [see Art. 17 ЗИН, Art. 70§1 CC and Art. 415]. However, the credibility of this letter and its claim is refuted by the evidence of that written announcement made in 2003 by the Respondent found on page 7 of the “Information Brochure on the Rights and Obligations of Prisoners in the Sofia Prison Elaborated with the Financial Support of the European Initiative for Democracy and Human Rights Sofia 2003”. This official publication by the Respondent is unambiguously and setouts out in no uncertain

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terms that the settling of fines or civil debt by a foreign citizen is for the Respondent a condition sine qua non for any non-Bulgarian seeking to become a candidate for parole. A conclusion supported by the fact of the 37 and still growing number of non-Bulgarian citizens that the Respondent routinely denies any possibility to candidate for an administrative review of their possible early release [see List, Foreign Prisoners Who As of 12.31.2005 Formally Satisfying Art. 70§1 CC and Sofia Prison COMMISSION “PROTOCOLS (Minutes) from 08.2004 to 10.2005] Most certainly the provisions of article 70(1) of the Bulgarian CC most contains no criteria [financial] as a conditional to early release [parole], therefore the Respondent creating a financial criterion [see again page 7 of the “Information Brochure on the Rights and Obligations of Prisoners in the Sofia Prison Elaborated with the Financial Support of the European Initiative for Democracy and Human Rights Sofia 2003] and applying this to only non-Bulgarian citizens [offenders] is not only unlawful but also a malfeasance and represents a form of coercion used to threat. Foreign citizens be assured by Sofia prison officials of the Respondent that the will remain in prison to the full term of their criminal sentence is their families cannot pay their debts in Bulgaria. And with this coercion comes the psychological distress of watching others go free while less financial fortunate remain in prison. In Bulgaria the Respondent required that foreign citizens buy their freedom. Is it unlawful for the Respondent to determine different forms of treatment under Bulgarian national laws, or to derogate from a civil or legal rights according to the criteria of a criminal offender’s race, nationality or financial status and to impose on him treatment inconsistent with Bulgarian national law or the Standard Minimum Rules for the Treatment of Prisoners? Among other things the imprisonment and isolation of non-Bulgarian only in a maximum security penitentiary facility, refusing nonBulgarians any possibility for unsupervised family contact or leaves, refusing to give non-Bulgarians access to remedial education and work programs and the use of psychological torment and legal coercion by Sofia prison official who attempt to collect financial obligations from non-Bulgarian citizens by relying on the Respondent’s administrative powers according to article 17 and 17a of the Law for the Executions of Punishments. There is only one object and impartial reply, no and therefore all written and unwritten provisions of Ministry for Justice ORDER № LC -4 -277/2001 that create a different a legal status and different obligations for foreign offenders is by its very nature unlawful. It must be amended or revoked by this Court and the isolation of foreign offenders immediately ended and their equal right to protections and opportunities under the Law for the Execution of Punishments and other Bulgarian national laws restored The Applicant reserves his right to provide additional argument and evidence, Submitted 14.03.2006г. Michael Kapoustin
Exhibits Provided During Hearing on 14.02.2006 and Accepted Into Evidence

1. Letter № 8319/16.09.2004 issuer Main Directorate for the Execution of Punishments. Author
Director Peter Vassilev. Citation of item 4 of Respondent ORDER LC 4277/2002. Respondent

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instructions to issuer for isolation of all foreigners at Sofia maximum security penitentiary facility notwithstanding the term of imprisonment, prior criminal record or nature of the crime [against the person or against property or commercial];

2. Letter № 10691/04.VII/23.02.2006 issuer the Supreme Cassation Prosecutors Office. Author
Prosecutor Vulcheva. Citation of Letter № 725/20.02.2006 and Respondent ORDER LC 4277/02. Officials for the Respondent Sofia Central Prison inform Prosecutor Vulcheva that education and other remedial programs are by ORDER of the Respondent, not to be offered to non-Bulgarian offenders;

3. Letter № 94-M-147/13.09.2004, issuer Ministry for Justice. Author former Deputy Minister
Mario Dimitrov. Citation of item 4 of Respondent ORDER LC 4-277/2002. Respondent justifies isolation of all foreigners at maximum security penitentiary facility of Sofia as being for “the benefit of” foreign consuls and for access to translators;

4. 12.31.2005/List of 47 from 104 foreign citizens as independently prepared by the Applicant.
Identifies those European and other foreign nationals having less than a 5 year term remaining to their criminal sentence and who according to Article 12a of the Law for the Execution of Punishments should be but on the grounds of item 4 Respondent ORDER LC 4-277 are not transferred to the light security penitentiary facilities of the transition type attached to the Sofia prison and as is imperative according to Bulgaria national law;

5. Letter № 3179/18.04.2005, issuer Main Directorate for the Execution of Punishments. Author
Director of the Department, no name. Citation of item 4 of Respondent ORDER LC 4-277/02. Grounds for refusing transfer of non-Bulgarian citizen with less than 5 year sentence to a light security [transitional] penitentiary facility attached to the Sofia prison;

6. Letter № 1006/08/11/2004, issuer Main Directorate for the Execution of Punishments. Author
Deputy Director, no name. Citation of item 4 of Respondent ORDER LC 4-277/02. Grounds for refusing transfer of non-Bulgarian citizen with less than 5 year sentence to a light security [transitional] penitentiary facility attached to the Sofia prison;

7. 12.31.2005/List of 37 from 104 foreign citizens as independently prepared by the Applicant.
Identifies those European and other foreign nationals having formally satisfied all the legal and subjective [good behavior] requirements for parole according to Art. 70(1) of Bulgarian Criminal Code. Respondent appointed Sofia Prison Warden Dimitar Raichev determines candidacy for parole according to the financial status of each non-Bulgarian citizen and determines access to an administrative or judicial review of parole available only to those non-Bulgarians with demonstrated financial liquidity;

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8. Letter № 4502/30.05.2005. Issuer Main Directorate for the Execution of Punishments. Author
Director Peter Vassilev to the Respondent Minister for Justice. Citation of Bulgarian Criminal Code [Art. 70(1) CC] and claim before the Respondent that there is no ordinance or order that limits the possibilities of that law. It the court that determines the right for parole. The official statement in this letter contracted by official publications distributed by the Respondent and other official documents given into evidence. Exhibits Provided Prior to Hearing on 14.02.2006 and Accepted into Evidence;

9. Page 7 of the “Information Brochure on the Rights and Obligations of Prisoners in the Sofia Prison
Elaborated with the Financial Support of the European Initiative for Democracy and Human Rights Sofia 2003” and where it writes “conditional early release [parole] will not be apply for those [nonBulgarian citizens] who have unpaid debts”. Court requested from Respondent the Bulgarian text and author of the Order having made an addendum to Art. 70(1) of the Bulgarian Criminal Code establishing a financial and nationality criterion as an element sine qua non for a non-Bulgarian citizen to candidate for parole.

10. Letter Dated 09.08.2002 issuer Bulgarian Helsinki Committee. Author Mr. Stanimir Petrov
confirming completion of an investigation into the abuse of rights of foreign person in places of detention [prison] with results to be published in September 2002.

11. Letter Dated 12.07.2004 issuer Bulgarian Helsinki Committee. Author Ms. Mila Boyanova.
Confirming discrimination against non-Bulgarian citizens and they have a legal status unequal to that of Bulgarian citizens in places of detention [prisons]. Evidentiary Petitions Denied

12. Request for invitation of Bulgarian Helsinki Committee as an interested 3rd party.
Discovery Requests Unsatisfied

13. Respondent unable to produce copy of original letter authored by Deputy Minister for Justice Dimitar
Bangalov and forwarded, via the Embassy for the Republic of Bulgaria to Canada in November 2005 addressed to the wife of the Applicant Tracy Coburn Kapoustin and advising her that according to Bulgarian national law as a foreign citizen I was not eligible for parole. Additional Materials Filed with this Petition 14.

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