Monday, July 18, 2005

Civil Action: Kapoustin v. Republic of Bulgaria et al

Vancouver Registry Case No. S004040

Civil Action: LifeChoice et al v. Republic of Bulgaria et al

Vancouver Registry Case No. S005440
Subject: Next Hearing

BY ELECTRONIC MAIL
ATTACHMENT
ORIGINAL TO FOLLOW

1.Practices of the Defendant Bulgaria Existing In Aggravation of the Claims.

1.1. Conditions In The Republic of Bulgaria

1.1996
[1]As the Court may recall the Speaker began his detention in Bulgaria on 2nd September 1996.
[2]The conditions in Bulgaria and the treatment the Speaker could expect and did later encounter
were set out in 1996 by USAID [see: www.usaid.gov/countries/bg/bulseed.htm] it reported:

"The Government generally respects basic human freedoms, but serious human
rights problems remain. Police are not sufficiently accountable for abuses, including
the beating and death of detainees, and the resultant climate of impunity is a major
obstacle to ending these practices."

[3]In that same year Amnesty International reported [see: AI Index:EUR 15/07/96
DISTR:SC/CO/GR]:

"Human rights violations persisted in Bulgaria: they include shootings, torture,

beating and all forms of ill-treatment of detainees, sometimes resulting in death. The
rising number and regional distribution of the reported cases indicate that they are
numerous and widespread. Daily accounts of such incidents reveal a pattern of casual
violence and illegal acts by police officers throughout the country.

"The official statistics on shootings, deaths in custody and complaints of ill treatment
are not made public."

[4]The experiences of this Speaker during his solitary confinement at the hands of the defendant
Bulgaria went unreported. His complaints and attempts at communicating such complaints
severely punished. The AI (Amnesty International) Report for 1996 goes on to say "Lawyers,
non-government organisations monitoring human rights in Bulgaria as well as press
frequently report incidents of torture and ill-treatment." And:

"The deteriorating human rights situation is further compounded by a pattern of

impunity of law enforcement officers responsible for human rights violations.
International standards require prompt, thorough and impartial investigations into
reports of human rights violations by law enforcement officers. However, the
information on such investigations is seldom made public…..Failure to bring to
justice those responsible for human rights violations is in itself a violation of
international obligations. Furthermore in order to prevent such human rights
violations from reoccurring, the Bulgarian authorities need to clearly indicate that
such conduct is totally unacceptable."

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 [5]Persistent violations of fundamental civil rights or obligations and corruption is systemic, and
occurred regularly in the context of continued social and economic difficulties. Inadequate
legislative reforms by successive governments of Bulgaria left intact corrupt state institutions
and an atmosphere of lawlessness heightened by the numerous reports of the illicit financial
gains of former government nomenklatura, some of whom were and are still active
politicians.
[6]This Honourable Court is asked to recall a significant and outstanding incident involving the
1995 to 1998 co-operation of a Crown servant and diplomatic agent of Canada [see: above
references to defendant Derek Doornbos] with the Regional Department of Internal Affairs
Unit for Combating Organised Crime [the above referenced Ministry of Interior - secret
services police]. In the 1996 AI wrote:

"In January 1994 a series of gangland killings culminated in an incident in the Beli
Brezi in Sofia in which riot police, reportedly trailing an underground suspect, shot
dead two anti-terror officers by mistake. The killed officers were allegedly guarding
a meeting between government officials and members of the criminal underworld. In
January 1996 [one month prior to the Speakers arrest] two police officers
responsible for the killing were brought to trial, in which the hearings were held in
camera. Their superior officer at the time, Captain Khristo Savov, later chief of the
Regional Department of Internal Affairs Unit for Combating Organised Crime,
and another police officer were arrested on 26 February 1996 in Sofia on
charges of racketeering….The Ministry of Interior then reportedly initiated an
inquiry into possible links between police and the criminal underworld but there was
no information as to whether it was completed and if so with what results."

[Emphasis and [ ] Added - Mine]

[7]The significance of the foresaid data to the proceedings before the trial court can be found in
the exchanges of data and requests that occurred during operative calls and meetings of
Ministry of Interior agents with Crown servants.
[8]Faxes were exchanged and reports made by the Crown to agents of the Ministry of Interior,
including the foresaid Captain Savov, and his associates, in May of 1995. The Crown
inevitably assisting them in their efforts to cause pecuniary and non-pecuniary injury to the
plaintiffs, as well as to extort funds all or part of the funds identified by the Crown to Captain
Savov's Department of Internal Affairs Unit for Combating Organised Crime.
[9]The situation was summarised by AI as "police officers have traditionally placed the
protection of state interests above universally recognised rights of individuals" having lead to
AI's conclusion that the Bulgarian judicial system routinely practised a policy that failed to
safeguard fundamental human rights.
[10]AI reported, as this Speaker has documented with his own experiences, that the defendant
Bulgaria regularly refuses to provide proof on whether complaints against its officials are
processed, or to make public those documents necessary to prove such complaints against the
defendant Bulgaria before foreign courts or international tribunals. Such conduct has been and
continues to be inconsistent with the UN and European obligations of the Republic of
Bulgaria.
[11]AI further reported that year, as this Speaker has insisted to the trial court, that the defendant
Bulgaria does regularly breach the rights of victims of abuse of official powers (police or
judicial). There exist rights, but no effective remedies to secure those rights in Bulgaria, the
international law principle of a legal remedy against state agencies, instrumentalities or
officials that abuse their powers remains virtually non-existent before the Bulgarian courts.
2.1997
[12]In November of 1997, Mr. Peter Stoyanov was elected to President of the Republic of
Bulgaria. Stoyanov is a former attorney and business associate of this Speaker.

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 [13]Late in 1994 and the beginning of 1995 Stoyanov was paid $15,000 United States Dollars
(USD) by the Speakers British Columbia company. In exchange for these funds, Stoyanov
was to obtain municipal approval for the Speaker's company to install and operate a micro-
refinery and oil treatment plant near the City of Plovdiv. Stoyanov took the funds but never
provided the services promised, prior to the Speakers arrest he had been forcefully demanding
that Stoyanov return the funds. The money in question became a public issue during the
Speakers detention and at his trial in 1999.
[14]AI reported that 1997 began much like 1996 with "daily reports of torture and ill-treatment
by police officers" of most criminal suspects, some leading to death. Racial and religious
discrimination was often a predominate factor among police and investigative officers.
Medical attention was often denied victims when still in custody, or alternatively, as in the
Speaker's case, medical reports were provided that were consistent with police claims and not
the truth [see case: AI "Deaths In 1997: Mincho Sartmachev"]. Quoting AI;

"Ill treatment and beatings in police custody are common in Bulgaria and there now
exists a pattern of almost casual violence which Amnesty International believes must
urgently be addressed….Violence on the part of the police at the time of detention is
also frequent."

[15]Requests for independent medical examinations to verify claims of ill treatment are, as in the
Speaker's case, routinely denied him. All Canadian consular requests for an examination of
the Speaker by a Canadian doctor were routinely refused by the defendant Bulgaria.
[16]Police and investigator violence are a regular pattern utilised to obtain information or extract
confessions from suspects. Prosecutors and Judicial officials fail to pursue allegations against
police and other officials responsible to them under law. As a result human rights violations
are committed with impunity from prosecution or discipline.
[17]Bulgarian authorities failed in most cases to pursue those responsible or adequately
investigate reports despite obligations as a state party under the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment and Punishment.
[18]AI expressed deep concern over the failure of the Ministry of Justice and police to act on
complaints, so much so as to suggest to the government of Bulgaria that it establish a
complaints board independent of these institutions that included the office of the prosecutor
and courts.
3.1998
[19]During March of 1998 the Bulgarian government authorised the release of a report prepared
by the European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment. This report was compiled after the committee had visited the
various places of detention to be found in Bulgaria and concluded that those persons detained
there "run a significant risk of being ill treated at the time of their apprehension and/or while
in police custody, and that on occasion resort may be had to severe ill-treatment or torture".
[20]Of significance to the Speaker is that the report went on to state "that conditions of detention
in the National Investigative Service (NIS) facilities could be described as inhuman and
degrading", prisoner are held in isolation, often for years and under an "impoverished regime
offering very little human contact". The court may well recall that the Speaker had been
isolated more than two years (1996 to 1999) by the NIS at facilities described in the European
Committee report.
[21]Also during 1998 a United Nations Committee on the Elimination of Racial Discrimination
had expressed alarm at the number of incidents of violence against members of minority
groups.
[22]Jews are an invisible minority in Bulgaria society and Bulgaria Jews maintain a low profile
due to Anti-Semitism that is imbued through out Bulgarian society, particularly police and
prosecutors.

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 [23]The court may recall that the Speaker is of Jewish ancestry. Should this Honourable Court
have cause to review the offensive and actionable words complained of as slanders and
blasphemous libels, framed in the tort of defamation, it would become immediately apparent
that Anti-Semitism played a significant part in the way the defendant Bulgaria has treated the
Speaker throughout his 6 years of arrest. There is no exaggeration to the statement made in
1998 by USAID that "Bulgaria needs to strengthen rule of law; and do more to protect
human and minority rights….Anti-corruption efforts need to be intensified, and functioning
of the judicial system improved".
4.1999
[24]During 1999 the Parliamentary Assembly of the Council of Europe decided to continue
monitoring Bulgaria's honouring of its international obligations and commitments [see below:
Part 3 "Law and Enactment Relied On"], assembly rapporteurs expressed concern to the
council about continued police violence.
[25]In May of 1999 the Chief Prosecutor and the Director of NIS both acknowledged there had
been "serious violations of laws, rights and freedoms of citizens" that were becoming ever
more, rather than less, frequent in the practice of the Ministry of Interior.
[26]The Court is asked to recall the 1995 agreement of the Crown with the Ministry of Interior, of
the defendant Bulgaria, the Crown having asked the said defendant to "prosecute for
whatever" the Speaker or his company in Bulgaria.
[27]It is recalled from the AI report of 1996 that the defendant Bulgaria's interior police was
known to be co-operating with, and protecting, high ranking members of organised crime.
[28]The Ministry of Interior continues its practice of not co-operating in complaints against its
officers or facilities under its control. It may be remembered that the Ministry of Interior
effected all the seizure of property belonging to the plaintiffs in Bulgaria, and records of their
companies.
[29]The Ministry of Interior was responsible for efforts in Bulgaria connected to the discovery of
the whereabouts of funds the Crown had advised the said ministry of on July 7th 1995 as
having been located in the province.
[30]We find from the facts placed before the trial court that the Crown was actively engaged with
members of an agency of the defendant Bulgaria having been indicted by international
community for gross violations of human and civil rights.
[31]The plaintiffs are alleging before the trial court, in aggravation of their claims against the
defendant Bulgaria and the Crown, that the beating of the Speaker, and attempts in Canada to
extort money from the plaintiffs are organised by officers of the Internal Affairs Unit for
Combating Organised Crime, Ministry of Interior of the defendant Bulgaria.
[32]On February 25th 2000, the United States State Department "1999 Country Reports on Human
Rights Practices" [see: www.state.gov/www/global/human_rights/1999] wrote:

"The judiciary is independent but suffers from corruption and continues to struggle
with structural and staffing problems.

"Most internal security services are responsible to the Ministry of Interior, including
the Central Service for Combating Organised Crime, the National Security Service
(civilian intelligence), internal security troops, border guards, and special forces.
Although government control over police is improving, it is still not sufficient to
ensure full accountability. The Special Investigative Service (SIS), reduced in size by
a recent reorganisation, is a judicial branch agency and therefore not under direct
government control. Some members of the police committed serious human rights
violations"

[33]The US State Department indicated that, as in the prior years, the security forces continued to
beat suspects and prison inmates. The Speaker make reference to such fact as it is relevant to
his past treatment and the ever present threats under which he exists.

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 [34]In 1999 accountability remained practically non-existent and prison conditions are "harsh, and
pre-trial detention is often prolonged", it goes on to say that the "judiciary is underpaid,
understaffed, and has a heavy case backlog; corruption is a serious problem. The Government
infringed on citizens' privacy rights…Discrimination against the disabled and religious
minorities is a problem."
[35]It can be seen that the defendant Bulgaria's Constitution [see below: Part 3 "Law and
Enactment"] forbids cruel and inhuman treatment or punishment. Despite this the police, well
into the year 2000, commonly beat criminal suspects and members of minorities.
[36]Such tactics (beatings, drugging and intimidation) had been reported in previous years as
frequently used, as with the Speaker, to extract information or false testimony. Human rights
groups reported that complaints are rarely received through official channels.
[37]According to reliable USA State Department sources "Human rights monitors report that they
receive many more complaints from persons who are to intimidated to lodge an official
complaint with authorities", persons deprived of their liberty run significant risks of being
mistreated if complaining.
[38]A Bulgaria Helsinki Committee reported survey Bulgaria's prisons, finding that "51 percent of
interviewed prisoners reported that police officers used physical force against them during
arrest; 53 percent reported mistreatment at police stations" and seldom are charges against
prison guards investigated, more rarely are they prosecuted..
[39]During 1999 and 2000 conditions in prisons continued to be harsh, "severely overcrowded",
places having "inadequate lavatory facilities, and insufficient heating and ventilation".
[40]Human rights monitors received from credible sources reports of "numerous cases of brutality
committed by prison guards against inmates" and that "the process by which prisoners may
complain of substandard conditions or of mistreatment does not appear to function
effectively". The Speaker has himself briefly documented his own experiences in Part 1 [see
above : "Fact of the Case: Respondent's Reliance on its Criminal Prosecution of the
Speaker"].
[41]The U.S. State Department reported noting that the Bulgaria Constitution [as cited below]
provided for access to a lawyer at the time of detention. It further observed that the law
required that all pre-trial investigation to be completed by the prosecutor in the worst case not
more than 9 months.
[42]However, a survey of prisoners and reported cases showed that 54 percent of those arrested
were denied access to an attorney and in practice the simplest investigations took one and
even two years to bring to trial. Even then, the State Department reports, cases were returned
by prosecutors or judges for more investigation or as a result of violations of a detainees
rights of defence. The court may recall the speakers case took more than 3 years to
investigate, of which he spent the better part of those years in solitary confinement.
[43]Local observers reported to U.S. State Department sources that organised crime influences the
prosecutors office. This report reinforces Amnesty International and Human Rights Watch
reports that the judiciary has "antiquated procedures", a heavy backlog of case and there
continues to be wide spread corruption.
[44]The Observation Committee of the Parliamentary Assembly of the Council of Europe in
December of 1998 prior to its dissolution related concerns that there were "inadequate
safeguards for the independence of the judiciary in the country."
[45]Of significance to the case before the trial court and the present enquiry into the conditions
from which the Speaker must prosecute his law suit are the words found in a U.S. State
Department report:

"It is alleged that warrants to investigate suspects' private financial records

sometimes are abused to give police broad and openended authority to engage in far-
ranging investigations of a suspects' family and associates. There are regular, albeit
not conclusive or systemic, reports of mail, especially foreign mail, being delayed
and/or opened."

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 [Emphasis Added - Mine]

[46]The court is asked to recall the facts surrounding the Crown's request to have the Speaker and
the plaintiffs company prosecuted by Bulgarian authorities. It is recalled that the Crown
request was in order to aid the Attorney General of the province to obtain information from
Bulgaria for a criminal investigation in British Columbia [see: "Facts of Case: Malicious
Prosecution " - July 7 1995 Crown Request].
[47]Of some significance to the trial court and the present enquiry are the independent reports that
the "Government exerts an unduly large influence on the media through official channels" and
that "Journalists frequently colour their reports to conform with the views of the political
parties or economic groups that own their newspapers." This report is consistent with
plaintiffs claims against the Respondent that sound in the tort of defamation.
[48]The Speaker has made complaints of Anti-Semitism as being a part of the harsh treatment he
experienced after his arrest. This complaint is consistent with the U.S. State Department
report of "discrimination, harassment, and general public intolerance" towards religious
minorities not a part of the traditional mainstream of the Orthodox Church. And that
"Numerous articles in a broad range of newspapers as well as television documentaries, drew
lurid and inaccurate pictures of the activities of non-Orthodox religious groups".
[49]It is to be recalled that numerous articles concerning the plaintiffs were written making
reference to Canadian government sources connecting the Speaker, a Jew, to the culture of
Judaic mysticism and Kabbalistic beliefs. It will be recalled that this connection was provided
by the Crown in 1995 to agents of the Ministry of Interior of the Defendant Bulgaria.
5.2000
[50]AI continued to express concerns in its August 2000 report about the continuing "high
incidence of reports of ill-treatment by Bulgarian police officers. A questionnaire survey
conducted among nearly 1000 convicts in Bulgaria's prison system on behalf of the Bulgarian
Helsinki Committee in early 1999 revealed over half claimed that they were tortured or ill
treated during arrest", causing AI to conclude that ill treatment continued to be a "systemic,
institutional problem".
[51]The Bulgaria government agencies continue to refuse to provide human rights organisations
with reports into case of torture or ill treatment.. AI writing that such refusals "cast doubt on
their conduct". The AI Annual Report 2000 made the following conclusions that are
significant to the trial court proceedings and present applications before the Court of Appeal:

"There were reports of ill-treatment and torture by police, and of a death in police
custody. There are also reports that people who complained about torture and ill-
treatment by law enforcement officials were subject to intimidation or further ill-
treatment."

"The UN Committee against Torture met in April and May to consider Bulgaria's
second periodic report. The committee found that Bulgarian law lacked a definition
of torture and failed to ensure that all acts of torture are offences under criminal law.
The committee expressed concern about continuing reports of ill-treatment by
public officials, particularly the police, especially of ethnic minorities. The
committee also expressed concern about the deficiencies in the system of
investigation of alleged cases of torture and the failure to bring those allegations
before a judge or other appropriate judicial authority."

[Emphasis Added - Mine]

1.2. Definitions of Torture.

[52]It may be reasonable here to introduce to the court the internationally accepted interpretation
given to the terms "cruel, inhuman or degrading treatment or punishment".

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 [53]The Appeal Court is asked to extend the widest possible interpretation to the international
obligation of states, and the duty of the judiciary in protecting against abuses, whether
physical or mental, including the holding of a detained or imprisoned person in conditions
which deprive him, temporarily or permanently of the use of any of his natural senses, such as
sight or hearing, or of his awareness of place and the passing of time. [see for referance:
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, G.A. res. 39/46, [annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc.
A/39/51 (1984)], entered into force June 26, 1987 as follows:

· "PART I

· "Article I

"1. For the purposes of this Convention, the term "torture" means any act by which
severe pain or suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or a third person information or a
confession, punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a third person, or
for any reason based on discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity. It does not include pain or
suffering arising only from, inherent in or incidental to lawful sanctions."

[54]See for further reference as well: The Declaration on the Protection of All Persons from Being
Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A.
res. 3452 (XXX), annex, 30 U.N. GAOR Supp. (No. 34) at 91, U.N. Doc. A/10034 (1975) as
follows:

· "Article 1

"1. For the purpose of this Declaration, torture means any act by which severe pain
or suffering, whether physical or mental, is intentionally inflicted by or at the
instigation of a public official on a person for such purposes as obtaining from him
or a third person information or confession, punishing him for an act he has
committed or is suspected of having committed, or intimidating him or other
persons. It does not include pain or suffering arising only from, inherent in or
incidental to, lawful sanctions to the extent consistent with the Standard Minimum
Rules for the Treatment of Prisoners.

"2. Torture constitutes an aggravated and deliberate form of cruel, inhuman or

degrading treatment or punishment.

"Article 2

"Any act of torture or other cruel, inhuman or degrading treatment or punishment is

an offence to human dignity and shall be condemned as a denial of the purposes of
the Charter of the United Nations and as a violation of the human rights and
fundamental freedoms proclaimed in the Universal Declaration of Human Rights .

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