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To whom it may concern, The following document represents an early draft of a future submission to the Council of Europe.

In advance I apologize for typographic, spelling and grammatical errors. The proposed submission of a Complaint is contingent on the Applicants first securing State sponsorship, something which is by no measure certain. However, the relevant law and facts referenced here are accurate and do apply to all foreign citizens deprived of liberty in Bulgaria. The truth of this cannot be so easily dismissed, particularly by Bulgarian prison administrators the likes of Mr. Peter Vassilev and others. Whatever assistance the reader can offer the Applicants or only to his fellow citizens will ultimately benefit all those concerned. Following the Complaint is a compilation of documents that give substance to the Complaint. These are copies of official exchanges between agencies of the Government of Bulgaria inter alia the Bulgarian Prosecution, Ministry for Justice representatives and with the Bulgarian Helsinki Committee, and the Supreme Administrative Courts for the Republic of Bulgaria. The correspondences have been initiated by myself and other foreign Offenders who are of the same opinion, that we as non-Bulgarian have a different and lesser legal status. The documents are in reverse chronological order, most recent appearing first. They are in no other particular order, something for which I apologize and will correct in the future. Some documents are in Bulgarian language and others in English and Bulgarian, for this I am sorry but I lack the resources to secure translations of all relevant documents. The most significant document in connection with direct discrimination is to be found in the human right claim against the Ministry for Justice as now before the Supreme Administrative Court of Bulgaria. This document is in PDF format and should be easy to work with. I will provide you with all other forms of assistance where asked for and when possible. Regards, Michael Kapoustin Citizen of Canada Sofia Prison

The Minister for Foreign Affairs Serbia and Montenegro Belgrade, Serbia
Care of EMBASSY OF SERBIA AND MONTENEGRO 17, Blackburn Avenue Ottawa Ontario KIN 8A2 CANADA

APPLICATION
FOR ASSISTANCE

IN A COLLECTIVE COMPLAINT
under Rule 19 Rules of Procedure European Committee of Social Rights PART VII Collective Complaints Procedure From Citizens of Serbia and Montenegro and other Non-Bulgarian Offenders

AGAINST

The Republic of Bulgaria
The Complaint alleges against the Republic of Bulgaria inter alia violations of the non-discrimination Preamble of the European Social Charter and the rights of the individual and the family to free movement and social, legal and economic protection when read with the Preamble. The Applicants are alleging a widespread discrimination against non-Bulgarian Offenders both in law and in practice in the fields of Bulgarian criminal law, observing of treaty bona fides, and right to the movement of persons, [prison] housing, education and employment while deprived of liberty in Bulgaria. The Republic of Bulgaria refusing to observe its positive obligation as a Council of Europe member in guaranteeing the right of equal access and fair application of Bulgaria’s national laws and international agreements to those Offenders who are not citizens of Bulgaria and also having a property status insufficient to settle financial obligations in Bulgaria. The Applicant(s) believing that the democratically elected governments of the Council of Europe should not tolerate another member state, the Republic of Bulgaria, relying on the criteria of [non-Bulgarian] nationality and property status as a casus for segregating and isolating citizens of other Council of Europe member states (the foreign “Offenders”) from legal rights and social protections as are protected by international treaty law. The Applicant here, one Nikolai Vasich, a citizen Serbia and Montenegro, of belongs to that group of foreign Offenders suffering and continuing to suffer the injustice and indignity of physical segregation and legal isolation from the protections of law. And this only because as a citizen of Serbia and Montenegro and having a property status unacceptable to the Government of Bulgaria. In the Republic of Bulgaria refusing to recognise physical segregation and legal isolation of foreign Offenders as a form of discrimination it has committed a breach of international law and it is in violation of its positive obligations to the Council of Europe. As a result the Applicant(s) turn to the other Council member states and the Council of Europe Committee for Social Right to ascertain if such a refusal is consistent with the Council’s Charter and other international laws. The posited question is the following. Does the Council of Europe endorse the Bulgarian government’s practice of an Offender’s nationality, property and public status creating legal rights different from and less than those other offenders who citizens of Bulgaria when such rights are governed by the same national laws and international treaties and notwithstanding that neither Bulgarian national law or international treaty makes such distinction when determining the positive obligations and negatives restrictions agreed to by Member States for their guaranteeing equal individual rights? From: Nikolai Vasich Citizen of Serbia and Montenegro Prepared by: Michael Kapoustin Citizen of Canada 10th Prisoners Group Sofia Central Penitentiary Sofia Bulgaria

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The Minister for Foreign Affairs Serbia and Montenegro Belgrade Thursday, June 30, 2005 Sir, This Application is on behalf of a citizen of Serbia and Montenegro, Mr. Nikolai Vasich, as prepared in an official language of the Council of Europe by a citizen of Canada Mr. Michael Kapoustin. It is filed on behalf of Mr. Vasich and the other non-Bulgarian nationals imprisoned in the Republic of Bulgaria who collectively hereinafter are referred to as either the “[Foreign] Offenders” or the “Applicants”. The Application can be summarized as follows. 1. The Minister for Foreign Affairs Government of Serbia and Montenegro is petitioned by Mr. Nikolai Vasich a citizen of Serbia and Montenegro, to sponsor a Collective Complaint before the European Committee of Social Rights according to Rule 19 of the Rules of Procedure of the European Committee of Social Rights PART VII Collective Complaints Procedure; In the Alternative the Ministry for Foreign Affairs Government of Serbia and Montenegro is petitioned to assist Mr. Nikolai Vasich a citizen of Serbia and Montenegro and to contact on behalf of Vasich a Non-government Organization (NGO) for the submission of a Collective Complaint before the European Committee of Social Rights according to a Rule 19 of the Rules of Procedure of the European Committee of Social Rights PART VII Collective Complaints Procedure;

2.

What follows is an attempt to establish before the Honourable Minister for Foreign Affairs the legal and factual merits of our request and the proposed “Collective Complaint”, Sincerely, Nikolai Vasich Citizen of Serbia and Montenegro

Michael Kapoustin Citizen of Canada 10th Prisoners Group Sofia Central Penitentiary Sofia Bulgaria

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Table of Contents
Request to the Minister for Foreign Affairs............................................................................. 6 Admissibility Criteria before the Committee for Social Rights............................................... 6 The Republic of Bulgaria - Subject to the Social Charter ....................................................... 6 Procedure – The Need for a Sponsor ...................................................................................... 6 Policy, Law and Practice – casus foederis of the Complaint .................................................. 7 Confirmation of the Discriminatory Criteria........................................................................... 8 By The Republic of Bulgaria.................................................................................................... 8 The Bulgarian Helsinki Committee.......................................................................................... 9 Form of Derogation .................................................................................................................... 9 State Respondents –Admissions and Arguments................................................................... 11 The Ministry for Justice ......................................................................................................... 11 No Factual Dispute ........................................................................................................... 11 No Positive Obligation for Non-Discrimination and No Negative Restriction against Discrimination................................................................................................................... 11 Prison Committees are “Secret” Tribunals affecting Legal Rights ................................... 12 Prison Parole Committees ex lege are Doubling the Prison Term for Foreign Offenders 13 Administrative Increase in the Effective Prison Terms of Foreign Offenders.................. 14 Foreign Governments Mislead by the Bulgarian Ministry for Justice .............................. 15 Bulgarian Discrimination is Systematic and Systemic .......................................................... 16 Prevailing Bulgaria law makes a mockery of the Ministry for Justice................................ 17 Prosecutors General for the Republic of Bulgaria – ............................................................. 21 No Factual Dispute ........................................................................................................... 21 Nationality, Property and Public Status Determines Parole.............................................. 21 Applicant Reasons .................................................................................................................... 23 On the Question of the Transfer of Offenders ....................................................................... 23 All the Applicants have, at one time or another, petitioned the Bulgarian Prosecutors General for transfer under the Convention. ...................................................................... 23 No alternate Venue or Judicial Remedy................................................................................. 25 Government Ordinances and Law against Collective Complaints........................................ 25 Exhaustion of Individual Complaints Procedures ................................................................. 25

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Bulgarian Administrative Courts Refuse having Jurisdiction ............................................... 26 Final Remedy ......................................................................................................................... 27 Confirmation of the Discriminatory Criteria......................................................................... 27 Conclusions ........................................................................................................................... 27 Order for Review of the Applicants Concerns....................................................................... 29 Request before the Committee ................................................................................................ 32

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Request to the Minister for Foreign Affairs
Mr. Nikolai Vasich petitions the Minister for Foreign Affairs for Serbia and Montenegro to sponsor a Collective Complaint on behalf of himself as a citizen of Serbia and Montenegro, and other foreign citizens currently serving criminal sentences in the Republic of Bulgaria, and hereinafter called the “[foreign] Offenders”. The Minister for Foreign Affairs for the Government of Serbia and Montenegro is petitioned to consider submitting for the Applicants a Collective Complaint against the Republic of Bulgaria before the Council of Europe Committee of Social Rights (hereinafter the “Committee”) and the European Union’s Commissioner for Justice and Human Rights (hereinafter the “Commissioner”). If in the alternative the Government of Serbia and Montenegro is unwilling to submit a Collective Complaint for its citizen(s) for reasons of conflict of interest, protocol or procedure, then the Minister for Foreign Affairs for Serbia and Montenegro is petitioned by the Applicant Nikolai Vasich as a citizen of Serbia and Montenegro to contact a non-government organization (NGO) prepared to assist Vasich as a representative of the affected group (foreign Offenders) in preparing and submitting a Collective Complaint before the Committee and Commissioner.

Admissibility Criteria before the Committee for Social Rights
The Republic of Bulgaria - Subject to the Social Charter
The Commission on European Communities 2004 Regular Report on the Republic of Bulgaria, Annex № 1 page 148 idetifies the Republi of Bulgaria as having ratified and agreed to adhere to the the Revised Euoprean Social Charter and to submit itself to the Collective Complaints procedure. The Government of the Republic of Bulgaria is therefore accountable before Committee and Commissioner when refusing to abide by the nondiscrimination PreAmble of the Charter and other internatioanl human rights instruments.

Procedure – The Need for a Sponsor
According to Rule 19 of the Rules of Procedure of the European Committee of Social Rights PART VII of the Collective Complaints Procedure, all collective complaints must be delivered to the Secretary to the Committee acting on behalf of the Secretary General of the Council of Europe.

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Each Collective Complaint must be submitted (1) either by a Council of Europe member or in the alternative (2) any organisation referred to in paragraphs 2 and 3 of the addition Protocol to the European Social Charter (hereinafter the “Charter” see Rule 22, Rules of Procedure). If the Government of Serbia and Montenegro refuses to act form its citizen Mr. Vasich and instead refers this Application to an NGO, then that NGO must be registered and qualified for the submitting of such complaints before the Council of Europe. The admissibility criteria of the Committee require that this organization (NGO) meet the requirements of Article 1 b) and Article 3 of the Protocol to the Charter (the “Protocol”). The NGO must have consultative status with the Council of Europe and be included on the list established by the Governmental Committee of international non-governmental organisations (NGO’s) who are entitled to lodge Collective Complaints. The NGO must have the competence within the meaning of Article 3 of the Protocol to submit a Collective Complaint. In the Applicants case any NGO monitoring the human rights complaints of minority groups found in European prisons and providing assistance to the affected group for the bringing of a collective complaint against a Council of Europe member state and European Union candidate government still permitting policies and practices of discrimination for collective punishment and systematic derogation of legal rights and protections otherwise available the majority and ordinary citizens. The Applicants look forward to working directly with the Honourable Minister for Foreign Affairs for Serbia and Montenegro and any NGO the Honourable Minister may recommend.

Policy, Law and Practice – casus foederis of the Complaint
The Bulgarian Ministry for Justice promotes discrimination according to the nationality, property and public status of an Offender. As a result, Ministry of Justice officials and employees practice direct and indirect discrimination against foreign Offenders as a matter of policy. This same policy of direct and indirect discrimination is being routinely enforced by the Sofia Prosecutors Office and City Court justices who routinely determine an Offender’s legal rights and obligations according to nationality, property status and public status. Bulgaria’s Ministry for Justice persists in his defence of discrimination as policies and practice not inconsistent with Bulgaria’s agreements with the

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Council of Europe, including the Charter’s Preamble of non-discrimination. It is the defence of these policies and practices that brings the Applicants complaints, casus foederis,1 within the legal and procedural ambit of the Charter.

Confirmation of the Discriminatory Criteria
By The Republic of Bulgaria
The Minster for Justice and Prosecutors General for the Republic of Bulgaria confirm the following “policies” and “practices” of direct and indirect discrimination; 1. POLICY “DECREES”, “ORDINANCES” or “ORDERS” issued by the Bulgarian Minster for Justice including but not limited to Decree № LC-04-277/2002 for the “segregation and isolation” of foreign nationals; BULGARIAN NATIONAL LAW including but not limited to Article 39a abstract 5 and 43 of the Bulgarian Law for Foreigners in the Republic of Bulgaria and its provisions for the administrative deprivation of liberty [freedom of movement] according to a foreign citizens property status; PRACTICES AND “ORDERS” issued by the Prosecutors General for the Republic of Bulgaria. Prosecutors are required to determine the rights of an Offender to judicial procedures reviewing home or medical leave, probation or parole and international transfer according to the criteria of the Offender’s nationality, property and public status; POLICY AND PRACTICE issued by the Ministry for Justice - Main Directorate for the Execution of Punishments to officials and employees of the Sofia Central Penitentiary allowing the prison “Commission” formed under to Article 17 of the Law for the Execution of Punishments to exercise what is otherwise a judicial function and to do so “in secret” [see Ministry for Justice letter № 54-00-164/December 2nd 2004 page 1 para. 3]. The “Committee” Chairman [id est the Prison Warden] and Vice Chairman [id est the Prison Assistant Warden for Security and Discipline] are permitted to make determinations of law and fact and to issue “unwritten decisions” in an area of criminal law that otherwise appears to be exclusively the jurisdiction of the criminal courts according to Art. 70 of the Bulgarian Criminal Code;

2.

3.

4.

1

a case clearly coming within the provisions of a treaty.

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5.

POLICY AND PRACTICE issued by the Ministry for Justice - Main Directorate for the Execution of Punishments to officials and employees at the Sofia Central Penitentiary requiring the prison “Committee” formed under to Article 17 of the Law for the Execution of Punishments to determine the rights of an Offender to home or medical leave, and judicial procedures for review of the right for probation or parole according to the criteria of the Offender’s nationality, property and public status;

The abovecited exist policies and practices exist only for limiting or derogating from the legal rights of Offenders according to any one or all of the following criteria; a. b. c. [Non-Bulgarian] nationality [id est of the Offender]; Public status [id est of the Offender]; Property status [id est of the Offender] and of his family;

The Bulgarian Helsinki Committee
On December 7th 2004, the Bulgarian Helsinki Committee agreed with the Applicants of there existing a Government of Bulgaria policy and practice of negative discrimination according to the nationality of an Offender. The Bulgarian Helsinki Committee confirming Offenders not citizens of Bulgarian as having fewer legal rights and a different legal status before Bulgarian government agencies, prosecutors and courts. A copy of this letter is provided.

Form of Derogation
The derogation of a foreign Offenders rights and protections takes the following form. First from the application, legal interpretation and practice surrounding what is a cabinet minister’s [Minister for Justice] decree imposing an Order for the [physical] segregation and [legal] isolation from Bulgarian laws those Offenders who are not citizens or residents of Bulgaria. Physical segregation and isolation from national law according to nationality, property or public status is expressly forbidden by the Bulgarian Constitution and other national laws, however it continues as an official Government of Bulgaria policy in force prior to the present Bulgarian Constitution’s non-discrimination provision; Second the application, legal interpretation and practice surrounding a national administrative law [Law on Foreigners on the Territory of Bulgaria] that

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permits prosecutors, police, officials of the Ministry of Finance and Bulgarian citizens to deprive a foreign citizen of liberty [free movement of persons] without the benefit of due process or judicial control. According to Bulgaria’s Prosecutors General the liberty to freedom of movement for a foreign citizen [or for the transfer of an Offender to a foreign prison] is determined by the Offender and his family’s property and public status when read with the immediately cited law. The liberty to leave Bulgaria and right to return home are rescinded sine die. This true even after the Offender has served the full term of his criminal sentence. Reinstatement for the liberty of free movement [to leave Bulgaria] for a foreign citizen is contingent on his proving what is a negative fact id est the he has no property or income in Bulgaria or elsewhere; Third the wrong application, erroneous legal interpretation and unethical practices that surround the application by prison administrators, Sofia prosecutors and Sofia Judges of the above first and second causes. The cited cabinet policy [decree] and administrative law provides the casus not only the execution of what are official malfeasances against foreign citizens but also provides the legal grounds for Bulgaria’s national courts to excuse such misconducts as “lawful”. Apparently denying to foreign Offenders legal rights, opportunities and protections enjoyed by Bulgarian Offenders in the fields of inter alia prison housing, employment, unsupervised leave, probation or parole and transfers is not abuse of their rights. At least according to the Bulgarian courts; Fourth the wrong application, erroneous legal interpretation and unethical practices that surround the application of the above second cause and provides the Prosecutors General for the Republic of Bulgaria administrative grounds for refusing to commence transfer procedures under the Convention for the Transfer of Sentenced Persons (the” Convention”) or for refusing to allow for the transfer of a foreign Offender. According to written reasons of the Prosecutors General for the Republic of Bulgaria, it is the property and public status of a foreign Offender in Bulgaria [and his family abroad] that will determine the obligation for the Government of Bulgaria observing treaty bona fides under the Convention. However, when requesting the repatriation to a Bulgarian prison of Bulgarian citizens the Prosecutors General for the Republic of Bulgaria fails to impose the same property or public status criteria on Bulgarian citizens as he does on citizens incarcerated in Bulgaria of other Contracting States to the Convention.

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State Respondents –Admissions and Arguments
The Ministry for Justice
No Factual Dispute When replying to the Applicants’ complaints, the Bulgarian Minister for Justice has admitted to the existence of a Government of Bulgaria policy and practice of affecting only the rights and obligations of foreign Offenders. That rights and obligations affected by the nationality, property or public status of an Offender are in the areas of his equal access to certain articles of Bulgarian national law, judicial procedures and international treaties. The Bulgarian Minister for Justice confirms in his letters that nationality, property and public status of an Offender will determine his legal rights and obligations and also the obligations of the Bulgarian State’s to that Offender. It is in a September 13th 2004 letter [reg. № 94-M-147] to one of the Applicants [Michael Kapoustin], that the Deputy Minister for Justice for the Republic of Bulgaria Mario Dimitrov confirmed the official Bulgarian government policy of requiring the “segregation and isolation” of all Offenders who are not citizens of Bulgaria. Bulgaria’s Deputy Minister for Justice did not dispute the Applicants’ allegations of their being “segregated” from housing and employment and “isolated” from social and other remedial opportunities a part of the Bulgarian Law on the Executions of Punishments. Therefore no factual dispute exists between the Applicants and the Government of the Republic of Bulgaria as concerns a policy and practice of discrimination affecting only the rights and obligations of foreign citizens, Offenders, in the Republic of Bulgaria. There appears no [reasonable] explanation from the Deputy Minister for Justice as to why it is necessary for the Government of Bulgaria to impose a policy of segregation and isolation according to nationality. No Positive Obligation for Non-Discrimination and No Negative Restriction against Discrimination According to the letter of the Bulgarian Deputy Minister for Justice, the Applicants’ complaints against its policy of discrimination are without legal merit, the complained of discrimination being “lawful”.

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The Deputy Minister for Justice RB identifies in his letter that the Bulgarian Parliament has not legislated a positive obligation for applying the Law for the Execution of Punishments to foreign Offenders in the same way as it is applied to Offenders who are citizens of Bulgaria. When questioned about this in the field or housing and the harshness in the type of imprisonment foreign Offenders must endure, the Deputy Bulgarian Minister for Justice RB writes that the national “law gives no reason for the relocation [transfer] of foreign citizens” by the Ministry for Justice – Main Directorate for the Execution of Punishments RB “to prison communities of the open and transitional type” (“няма законова основание за преместване на чуждите граждани в затворнически общежития от открит и преходен тип”). No explanation is given Deputy Bulgarian Minister for Justice RB, a former criminal court justice, of why the Bulgarian Law for the Execution of Punishments is according to him required to have separate provisions and different application for to Offenders who are not citizens of Bulgaria. Conspicuously absent is an explanation from the Deputy Bulgarian Minister for Justice RB of why the other parts of the Bulgarian Law for the Execution of Punishments continue to apply to foreign Offenders when there is absent from them a provision for applying the law to foreign citizens. A copy of this letter is provided. Prison Committees are “Secret” Tribunals affecting Legal Rights The Applicants have directly complained before the Ministry for Justice RB that the Sofia Central Penitentiary prison Committee conducts its session in “secret” and unreasonably withholds the facts and legal grounds for any decision negatively affecting the legal rights and obligations of a foreign Offender. The Applicants’ embassies have made similar complaints before the Government of Bulgaria Ministry for Justice id est that Prison Committees cannot conduct their activities in secret or issue “Decisions” affecting legal rights and obligations. The Ministry for Justice RB insisting in writing before representatives of the Government of Canada that members of the Prison Parole Commission, including the prosecutor and judge present, cannot be identified and are not accountable to Ministry for Justice, notwithstanding they are officials/employees of the Ministry. Also significant to the Applicants’ complaints before the Ministry for Justice RB has been conspicuous absence of any legal right for the

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Applicants to be represented or present when their case is brought a Prison Committee where the State is represented by a Prosecutor and a criminal court Judge. Clearly the meeting of these “secret tribunals” is not intended to be either fair or impartial. However, in a letter December 2nd 2004/№ 54-00-164 Bulgarian Deputy Minister for Justice RB Margarit Ganev writes to the Ministry of Foreign Affairs Canada the Consulate at Sofia that “the disclosure of names or acts of officers of the prisoner’s administration as regards their participation in procedures set forth by and related to the execution of the punishment “imprisonment” is unlawful…the principles of professional ethics approved by the UN and the Council of Europe for impartiality and independence of the expert opinion are guaranteed through restriction of the access to information related to names and circumstances”. According to the reasoning of the Minister for Justice Republic of Bulgaria, prison Committee’s and the names of “expert” participants’ are keep secret in accordance with “principles…approved by the UN and the Council of Europe”. However, Sofia Central Penitentiary prison Committee member id alio the Prison Warden and Deputy Wardens, Social Workers, Prison Psychologist, Prison Prosecutor and City Judge are not protected by any Bulgarian secrecy laws and their function is not within the category where “impartiality and independence” are guaranteed through restriction of information and the identity of the official. Prison employees and officials, prosecutors and judges are public servants for the Ministry for Justice RB. A copy of this letter is provided. Beyond the “secret” character of this “quasi-judicial tribunal” [Committee] and its secret membership are the relevant practices, laws and facts leading to the Applicants claims of discrimination and abuses of official power. Relevant to this is the following.

Prison Parole Committees ex lege are Doubling the Prison Term for Foreign Offenders The Applicants further complained to the Ministry for Justice RB that the Warden for the Sofia Central Penitentiary and Chairman prison the Parole Committee is exceeding the competence of its legal jurisdiction when, ex

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lege, increasing the affective term of an Offenders imprisonment. This is done solely according to the criteria of an Offenders nationality, and his property and social status. It was complained to the Ministry for Justice RB that an administrative act issued by a “secret tribunal” of Ministry for Justice Employees engaging in a collective administrative function of quasi-judicial review of individual criminal cases cannot determine an affective term of imprisonment for a foreign Offender that is nearly double that of a Bulgarian Offender. Administrative Increase in the Effective Prison Terms of Foreign Offenders However, officials of the Ministry for Justice and district prosecutors of the Prosecutors General for the Republic of Bulgaria are acting in scienter and collectively when refusing to submit for judicial review any one of the more than 29 of 102 foreign Offenders having completed the “affective term” of their criminal sentences, half [see Article 70 section 1 of the Bulgarian Criminal Code].

Bulgarian Criminal Courts of law, when determining the affective duration of a criminal sentence, are required to take into account that national law according to Article 70 §1 of the Bulgarian Criminal Code. Where once having served half of his prison term, all first time Offenders are to have the remaining part of their sentences judicially altered to ones of probation [parole]. According to the Bulgarian Criminal Code’s sentencing guidelines and the practice of Bulgarian criminal courts, all first time Offenders have affective terms of imprisonment of not more than one half of the original sentence, id est a 17 year sentence has an effective prison term of 8 years and 6 months. Also according to law Article 70 §1 of the Bulgarian Criminal Code in conj. Article 415 and the following of the Criminal Code of Procedure and practice [interpretive] Decisions of the Bulgarian Supreme Courts, the Offender has sine qua non the procedural right to judicial review for possible alteration of the remaining part of his sentence to one of probation [parole] from one of incarceration. Confirmation of this as a procedural right and of its indispensable character is confirmed by interpretative decision of the Plenum of the Bulgarian Supreme Court - Criminal Division Enactment № 7 from 26.06.1975 as cited previously.

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Therefore a [foreign] Offender has a legal opportunity guaranteed by Article 70 sect. 1 Bulgarian CC of a judicial procedure for reviewing of his conduct and for alteration to probation [parole] from one of incarceration of the remaining half of his sentence. A “right” that cannot be refused to any [foreign] Offender solely on account of his nationality. Property or public status. Therefore, it is the positive obligation of the Bulgarian Ministry of Justice and district prosecutors is to provide foreign Offenders equal access to this judicial review procedure. It is only a Bulgarian criminal court of law that can determine of the remaining term of an Offender’s imprisonment and refuse his parole but only if there are concrete legal and factual reasons for doing so. Therefore the Bulgarian Ministry for Justice is both legally wrong and is abusing Bulgaria’s national law and its international treaties when defending “secret tribunals” formed by its employees - prison Administrators [Officials for the Ministry for Justice - Main Directorate for the Execution of Punishments] of the Sofia Penitentiary - to deny, again in secret and giving written legal or factual cause for denying a foreign Offender his legal procedural right for a judicial review under Article 415 of the Bulgarian Criminal Code of Procedure in conj. Art. 70 of the Criminal Code. The Refusing of procedures for a judicial review of parole is permitted in case those cases of recidivism or in cases where there has been the commission of a new offence by the Offender during the course of his incarceration. However, from the numerous oral and written explanations offered the Applicants it is the criteria of “nationality”, “property status”, and failing to have a “good attitude to labour” and “danger to Bulgaria society” that in the case of foreign Offenders is most often cited as the reason for denying them access to the abovecited procedure of judicial review for parole. The grounds for such a refusal as are offered by the Bulgarian Ministry for Justice to consular representatives of the other Member States are both factually untrue and legally moot when it concerns foreign Offenders. Foreign Governments Mislead by the Bulgarian Ministry for Justice The arguments as why foreign offenders are refused parole and equal rights may be summarized as nationality, debts to the Bulgarian State and the failure to demonstrate their rehabilitation through work and pose a continuing danger to society. This is a blatant fabrication and openly deceitful.

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First, the Government for the Republic of Bulgaria Ministry for Justice refuses to provide gainful employment to [foreign] Offenders [see above “segregation and isolation” of foreign Offenders from “housing and places of labour”]; and Second because foreign Offenders once released, are to be deported from the Republic of Bulgaria and denied the right of return. Third, there are no provisions in the Bulgarian Criminal Code, or superior court interpretive decisions, where an Offender’s nationality or his property status are to influence or otherwise derogate from his right to a judicial procedure [under Article 415 et al CCP) or prevent the alteration of the remaining term of his criminal sentence to one of probation [parole] from incarceration [Art. 70§1 CC]. Therefore, conclusions by the Ministry for Justice and Sofia District Prosecutors for refusing foreign Offenders access to judicial procedures under Art. 415 et al CCP inter alia that a foreign Offender cannot be paroled since he has no family or residence in Bulgaria is absurd; And equally absurd is that a foreign Offenders has “not been rehabilitated” until he pays the Republic of Bulgaria the fine and court costs imposed with the criminal sentence against them, ergo nationality and property status of the Offender are to determine his eligibility for parole.

Bulgarian Discrimination is Systematic and Systemic
Proceeding from the above facts and the written admissions of direct discriminations made by agencies of the Republic of Bulgaria, the Applicants have reasonably concluded a systematic policy and systemic wide practice of discrimination in the abusing of foreign citizens imprisoned in Bulgaria to be the following. That the Ministry for Justice, Ministry for Foreign Affairs and Prosecutors General for the Republic of Bulgaria are each admitting and insisting before Council of Europe member states and Canada that; That according to Bulgaria it is reasonable for citizens of other member states and Canada to be segregated and isolated from Bulgarian national laws and social protections solely because they are not citizens of Bulgaria; That according to Bulgaria it is reasonable for citizens of other member states and Canada to have the affective term of their imprisonment revised upward by employees of the Ministry for Justice, the District Prosecutor and a District Judge members of a “secret tribunal” [prison Committees according to Art. 17 of the Law for the Execution of Punishments]. It reasonable and lawful for Offenders citizens of other member states and Canada if having unpaid debts

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and a public status making their release “abhorrent” or “unpopular” to Bulgarian society are by “secret tribunal” to be refused judicial procedures under Article 415 and the following of CCP. That according to Bulgaria it is reasonable and “right” the Ministry for Justice RB to keep “secret” the names, facts, grounds and decisions of a “secret tribunal” formed under Article 17 Bulgarian Law on the Execution of Punishments. The Ministry for Justice protecting its prison employees and officials, prosecutors and judges from accountability and the possibility of legal recourse or use of judicial remedy by an Offender alleging to be the victim of malfeasance [inter alia discrimination, corruption, abuse of office, defamation, conflict of interest et al] or misfeasance by an official; That according to Bulgaria it is reasonable for citizens of other member states and Canada to remain incarcerated in Bulgaria solely as a result of their having a property and public status such that the Government of Bulgaria is unwilling to permit their departure from Bulgaria for transfer under international conventions or allow for their deportation one having attained the right of probation [parole]; That according to Bulgaria it is reasonable for citizens of other member states and Canada to continue to be imprisonment in Bulgaria as a legitimate Bulgarian State tool of coercion for the purpose of collecting of money owed to either the Bulgarian State or a Bulgarian citizen [see the previously cited 28.07.2004 practice DECISION Reg. № 3679/04; 2.12.2004 practice DECISION Reg. № 42160/04; December 11th, 2004 DECISION № 28730/04 and others of the Supreme Cassation Prosecutors Office];

Prevailing Bulgaria law makes a mockery of the Ministry for Justice.
According to Bulgarian national law Officials and employees of the Ministry for Justice RB Sofia prison participating in the Committee are public servants. More damming is the law according to same Article 17 of the Law on the Execution of Punishments prison “…commissions [committee are], comprised by: (1) the chairman – the chief of the prison or reformatory, and members – judge from the county court, deputy chiefs, representative of the supervision commission and the psychologist of the prison or the reformatory; (2) the inspectors for social activity and reforming work, when the situation with the prisoners in their group is considered; ….(4) At the sessions of the commission a prosecutor from the regional prosecutor’s office shall be present” and their identities intended to be public.

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And according to Article 415§1 abstract (2) of the Bulgarian Criminal Code of Procedure2 the prison Committee formed under Article 17 of the Law on the Execution of Punishments this prison Committee have a public function of proposing Offenders to the City Court for possible probation (parole). Nowhere is there a provision in the national law for the Minister for Justice RB to withhold [keep secret] the identities of its employees at the Ministry of Justice – Main Directorate for the Execution of Punishments Sofia Central Penitentiary. Equally as true is the fact of no provision in the abovecited law allowing the Minister for Justice RB to withhold [keep secret] the actions taken by the Committee as can be determined from its Minutes or the legal and factual grounds for decisions affecting legal rights of foreign citizens. Bulgarian national law appears to consider prison Committees formed according Article 17 of the Law on the Execution of Punishments as administrative tribunals and therefore subject to directions and oversight of the Ministry for Justice RB and the courts, Any administrative or quasi judicial action or decision taken by this Committee or its members and affecting legal rights and obligations of a particular Offender must be open to view by the affected party. Any Rulings or Decisions taken by prosecutors and judges participating in these Committees are required by law to be subject to appeal or judicial control and public scrutiny for correctness, truthfulness, reasonableness and lawfulness. The Committee itself has no independent judicial authority or function. It and its membership cannot be considered impartial since its members are Ministry of Justice officials and prison employees subject and answerable to the orders of their immediate supervisors. In the cases of foreign Offenders the proposal to the City Court by either the Committee or Sofia Prosecutors Office are made on the occurrence of a foreign Offender having formally satisfying the requirements of Article 70§1 CC id est complete half or more of his criminal sentence.

2

Art. 415. (1) Proposals for conditional release under Articles 70 and 71 of the Penal Code may make:

1. The regional prosecutor, respectively the military prosecutor, in the place of execution of the punishment; 2. The Committee under Art. 17 of the Execution of Punishments Act.

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Furthermore, according to ENACTMENT № 7 from 27.06.1975 Of The Plenum Of The [Bulgarian] Supreme Court Criminal Division (Постановление № 7 От 27. Vi. 1975 г. на Пленума на ВС)3 on the occurrence of an Offender formally satisfying all the requirements of Article 70§1 CC, the “Committee” id est employees of the Ministry of Justice – Main Directorate for the Execution of Punishments Sofia Central Penitentiary are obligated to submit the Offender’s case for a judicial review. However, the cited December 2nd 2004 letter of the Minister for Justice RB disagrees with the reasoning of the Applicants. The Minster refuses to identify the membership of this “secret” tribunal’s to the Applicant Kapoustin or to representatives of the other foreign embassies whose citizens have rights affected by this Committee.

3

Относно общаване практиката на съдилищата по условното предсрочно освобождаване от изтърпяване на наказание.

С цел да се подобри работата на съдилищата по условното предсрочно освобождаване Пленумът на Върховния съд. ПОСТАНОВИ: 1. Обръща внимание на съдилищата да повишат активността си при решаването на въпроса за условното предсрочно освобождаване, като изискват от ръководствата на затворите сведенията за предлаганите за условно предсрочно освобождаване лица да съдържат изчерпателни данни относно законните предпоставки : а) … 2. … 3. … 4. Условно предсрочно освобождаване на изтърпяващ наказание лишаване от свобода е допустимо и когато той не работи поради нетрудоспособност, щом като е изтърпял изискуемата част от наказанието и е показал примерно поведение, независимо че изискването за честно отношение към труда е дадено кумулативно с изискването за примерно поведение. Щом като осъденият поради независещи от него причини не може да полага общественополезен труд и по този начин да покаже своето честно отношение към труда, а с примерното си поведение е дал доказателства, че се е поправил, може и следва да бъде условно предсрочно освободен. 5. При решаване въпроса за основанията за условно предсрочно освобождаване съдът не може да се позовава на обстоятелствата по чл. 54 и 55 НК, както и на квалифициращите деянието признаци, които се вземат пред вид при постановяването на присъдата Чл.70 НК изисква осъденият през време изтърпяването на наказанието да е дал доказателства чрез примерно поведение и честно отношение към труда, че се е поправил. 6. … 7. … 8. … 9. … 10. …

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Also the Minister for Justice RB refuses to provide materials on how these “secret tribunals” have conduced meetings, on what documents, other facts or law they have relied on for their conclusions. It is a result of this policy and practice of “secrecy” that the Applicants now seek to allege before the Committee that Bulgarian prison administrators, district prosecutors and judges who participate in these “secret tribunals” are acting inscienter to collectively impose a harsher punishment and prison term on all Offenders who are not citizens of Bulgaria, have unpaid debts and public reputations. From the written explanations of the Minister for Justice RB it appears to be irrefutable that these “secret” Committees have a “quasi-judicial” function as prison “tribunals”. Particularly when one considers the presence and participation of a district prosecutor and district judge at these Committees whose identities are kept “secret” by the Minister for Justice from the foreign Offenders and their embassies. The Constitution of the Republic of Bulgaria and other national laws do not provide for the formation of “secret tribunals” having a judicial or quasijudicial jurisdiction and allowing for the secret alternation of a criminal sentence or the secret imposition of a sanction extending the term of an Offender’s imprisonment. Therefore, according to law, the Committees formed according to Art. 17 of the Law on the Execution of Punishments should not be able to alter upward criminal sentences or impose additional criminal sanctions or harsher punishments. However, the facts and practices speak to the alternative. Committee members and the district prosecutor succeed in altering criminal sentenced indirectly, first by maintaining the secrecy of the Committee’s members; second by Committee sessions being conducted under rules of secrecy; third by not being required to provide written reasons for their decisions and fourth by negative decisions taken against the [foreign] Offender not being subject to any form of judicial control, review or remedy [id est only decisions positively affecting the legal rights of an Offender can be subjected to judicial control [Art. 415 and the following CCP]. Malfeasances, misfeasances, other misconducts or errors o law or omission by the Committee or its members are not subjected to any administrative or judicial control. At the time of this Application there are 29 of the 102 Applicants who have completed the “affective term” [more than half] of their criminal sentences. And who according to Bulgarian national law [Article 70 §1 CC] have acquired the legal right to a judicial review for alteration of the remaining part of their sentence to probation [parole].

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Prosecutors General for the Republic of Bulgaria –
No Factual Dispute The Prosecutors General for the Republic of Bulgaria has confirmed in writing the Bulgaria Government’s policy and practice of discrimination according to property and public status when applying international conventions or Bulgarian national laws to foreign Offenders. The Applicants [Foreign Offenders] have each been advised by Sofia Prosecutors Office and Sofia Penitentiary Officials, that ultimately it is their property status and that of their family and public status in Bulgaria that will ultimately determine access to a judicial review for their eventual probation [parole] in Bulgaria or transfer under the European Convention on the Transfer of Sentenced Persons (hereinafter the “Convention”). Nationality, Property and Public Status Determines Parole Article 70§14 of the Bulgarian Criminal Code determines the possibility of statutory parole. There is no provision in the Bulgarian Criminal Code for a different application of this law to Offenders not citizens or residents of Bulgaria or requiring Offenders to have a certain property or public status. However, according to the policies and practices of the Ministry for Justice – Main Directorate for the Execution of Punishments and the Prosecutors General– Sofia Prosecutors Office for the Republic of Bulgaria, the legal right to a judicial review under Article 70§1 of the Bulgarian Criminal Code is first to be determined by the Offender’s nationality, and then his property and public status. According to a 28.07.2004 letter [DECISION Reg. № 3679/04 in the case of Applicant Nikolai Vasich], a 2.12.2004 letter [DECISION Reg. № 42160/04 the case of Applicant Mr. Hussein Turk] and in numerous other similar letters [DECISIONS] prosecutors have confirmed to the Applicants that the Republic of Bulgaria relies on their nationality, property and public status to determine if they have satisfied the statutory criteria of Article 70§1 of the CC. In the 2.12.2004 letter [DECISION] № 42160/04 in the case of Mr. Hussein Turk Bulgarian prosecutors insist that the legal association
Art. 70. (1) (Amend., SG 153/98) The court can rule a probationary release ahead of term for the remaining part of the punishment of imprisonment regarding a convicted with exemplary conduct and honest attitude to the work, and who has proven his reformation and has served actually no less than half of the imposed punishment.
4

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between the “reforming influence” of the “penalty fine” and the criteria for a [foreign] Offender’s satisfying the rehabilitation criteria of Article 70§1 CC to be inseparable. When writing the December 11th 2004 letter [DECISION] № 28730/04 in the case of Applicant Nikolai Vasich, Bulgarian Prosecutors have identified that a [foreign] Offender or of his family paying or not paying the Republic of Bulgaria its financial penalties “exerts influence over the [prosecution] evaluation he [the foreign Offender] has been rehabilitated [Глобата, влияе върху преценката той се е поправил]” during the term of his imprisonment. It is apparent from these prosecution letters [Decisions] and numerous others that a foreign Offender is “rehabilitated” only when his property status or that of his family permits him paying to the Republic of Bulgaria the “penalty fine” and court costs. Apparently, Bulgarian prosecutors find that a foreign Offenders property status will determine his rehabilitation. It the wealthy foreign Offenders who have been “rehabilitated” and the other financially less fortunate foreign Offender “requiring further remedial work” at the Sofia Central Penitentiary. Sofia District Prosecutors for Bulgaria’s Prosecutors General and Officials of the Ministry for Justice Sofia Central Penitentiary deny that refusing an Offender access to a judicial hearing for probation [parole] as inconsistent with or contradicting prevailing legal interpretations on proper application of the relevant Bulgarian national laws. Sofia District Prosecutors for Bulgaria’s Prosecutors General and Officials of the Ministry for Justice Sofia Central Penitentiary find as acceptable their practise that a foreign Offender be required by Officials of Ministry for Justice – Main Directorate for the Execution of Punishments and the Prosecutors General– Sofia Prosecutors Office for the Republic of Bulgaria to first prove certain “negative facts” inter alia that the foreign Offender and his family must provide evidence and prove they have no property or income in Bulgaria or elsewhere; prove that the Offender poses no threat to Bulgarian society and prove the Offender’s rehabilitation is not a deception. However, Bulgarian Offenders do not have the same burden of proof and are excused from establishing beyond any reasonable doubt before the Warden of the Sofia Prison or the Sofia Prosecutors office these same negative facts. This policy and practice of discrimination and the impossible demanding of documental proof for negative facts affects only foreign Offenders.

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Applicant Reasons
What flows naturally from this reasoning of Bulgaria’s Prosecutors General proves to be the following. That official Government of Bulgaria policy and practice allows for property status [of a foreign Offender] to determine in advance what are his legal right when seeking access to a judicial review of his parole. Bulgarian Prosecutors insisting they are legally bound to refuse applications for judicial review of parole [Article 415 and the following procedures of the Bulgarian Criminal Code of Procedure] when a foreign Offender has any outstanding private debts, notwithstanding evidence to the contrary or the fact of the State of Bulgaria having or no evidence of the Offender or his family withholding information on their property, income or other resources. In fact the reverse may be said to be true, that Bulgaria’s Prosecutors General refuses to accept official [foreign court] documents establishing the Offender’s property status as being insufficient to settle his debts id est the Offender is bankrupt. The evidence of Foreign Courts found to be unacceptable.

On the Question of the Transfer of Offenders
The Applicants repeat and re-allege the above when read with Article 39a abstract 5 and 43 of the Bulgarian Law for Foreigners in the Republic of Bulgaria and applying the same allegations, mutatis mutandis, to the policy and practice of the Prosecutors General for the Republic of Bulgaria allowing an Offender’s property status to determine their transfer from Bulgaria under the European Convention on the Transfer of Sentenced Person, hereinafter the “Convention”. The Applicants again find that entire body of practice of the Prosecutors General for the Republic of Bulgaria under the Convention to be one confirming an official Government of Bulgaria policy of discrimination according to the property status of an [Foreign] Offender. According to the Prosecutors General for the Republic of Bulgaria it is personal assets and income that determines a foreign Offender’s right to transfer under the Convention. All the Applicants have, at one time or another, petitioned the Bulgarian Prosecutors General for transfer under the Convention. The entire number of foreign Offenders and their families at the Sofia Prison belong to that group of [foreign] Offenders having inadequate property, cash or personal income to allow the settlement of state imposed

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fines of 50,000 or more Euros as individually owed by most of the Applicants to the Republic of Bulgaria. The Persecutors General for the Republic of Bulgaria has refused each of the foreign Offenders requests for transfer under the Convention. The Persecutors General for the Republic of Bulgaria doing so solely according to the criteria of a [foreign] Offender’s property status, or at least not until the families of the Offenders pay state imposed fines. Something the Persecutors General for the Republic of Bulgaria knows or should know to be impossible for the Offender or his family. Offenders have recognized their property status to be in most cases (except that of the Canadian citizen Kapoustin) as the sole obstruction to their transfer under the Convention. As a result, each of the 63 [out of 93 foreign] Offenders seeking transfer have at one time or another petitioned the Minister for Finance for the Republic of Bulgaria to declare their individual fines as “uncollectible” and so clear the way for either of the following. (1) The transferring of the collection by the Persecutors General for the Republic of Bulgaria to the administrating State under the European Convention on the Validity of Criminal Sentences, or; (2) The extinguishing of the fine as “uncollectible” according to procedures of the Bulgarian Tax Code of Procedure. The Applicants similarly petitioned Bulgaria’s Prosecutors General. However, in practice DECISION № 5417 issued on 21.07.2004 [in the case of Applicant Mr. Veslav Niekalo], and numerous others, the prosecutor writes that “in conformity with the internal law [see 39a abstract 5 and 43 of the Bulgarian Law for Foreigners in the Republic of Bulgaria] the Bulgarian State collects its receivables before the individual debtor leaves the country’s [Bulgarian] territory and in this sense [Bulgaria] does not delegate legal authority for the other [Administering] state to collect its receivable (Съобразно вътрешното ни законодателство Българската държава събира вземанията си преди задълженото лице да напусне територията та страната и в този смисъл не делегира правомощия на други държави да събират вземанията й)”. The only possible conclusion to be reached from the above is that the Prosecutors General for the Republic of Bulgaria will only observe Bulgaria’s international treaty bona fides for the commencing of transfer procedures under the Convention if the property status of the [foreign] Offender seeking transfer is such that it meets the minimum cash criteria set

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by Bulgaria’s Prosecutors General id est sufficient cash to satisfy the money demanded by the Republic of Bulgaria. It is as a result of the above policies and practices established in the decrees of Bulgarian cabinet Ministers and practice decisions of Bulgaria’s Prosecutors General that act together to make meaningless the Preamble of the European Treaty on the Transfer of Sentenced Persons, that “…cooperation [with Bulgaria and other contracting states] should further the ends of justice and the social rehabilitation of sentenced persons…. foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity [by Bulgaria] to serve their sentences within their own society”. Obvious from the facts is the following. That the opportunity for the parole or transfer of foreign Offender is only granted to those foreign Offenders in Bulgaria having a property status sufficient to “purchase” from the Prosecutors General for the Republic of Bulgaria the cooperation of his prosecutors. And only insodoing can the foreign Offender secure persecution observance of a procedure of Bulgarian national law or of an international treaty.

No alternate Venue or Judicial Remedy
Government Ordinances and Law against Collective Complaints
There are no national judicial remedies available to the Applicants as the affected group. The Bulgarian Civil Code of Procedure and Bulgarian prison regulations prohibit the Applicants as Offenders to bring collective complaints before the judiciary against institutions, agencies, instrumentalities or officials of the Government of Bulgarian. There is no Bulgarian national oversight committee for complaints against discrimination.

Exhaustion of Individual Complaints Procedures
The Applicants have each individually filed numerous complaints before Bulgaria’s Minister for Justice, its Prosecutors General and the Supreme Administrative Court for the Republic of Bulgaria. Institutions of the Government of Bulgarian and the national courts persistently refuse to recognise the complained of policies and practices as a form of discrimination that negatively affects the rights of criminal Offenders and their

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families who are not Bulgarian citizens, and have a certain property and social status. In response to individual complaints, the Ministry for Justice, the Prosecutors General and Supreme Courts of Cassation for the RB admit to the complained of policy and practice id est the determination of rights and obligations according to nationality, property or social status of the Offender. However, each of the aforesaid have responded that restricting [segregation and isolation from] legal rights available to foreign Offenders to be Government policy and practice not within the ambit of the recognized categories of discrimination [see inter alia Decision № 101/November 11 2004 Supreme Cassation Court RB Case № 156/2004 page 2; Decision № 71/July 7 2004 Supreme Cassation Court RB Case № 148/2004 Private Appeal of the Applicant Kapoustin v. Ministry for Justice RB – discrimination according to property and social status; a l'impossible nul n'est tenu5].

Bulgarian Administrative Courts Refuse having Jurisdiction
The Applicants have complained to the Supreme Administrative Court for the Republic of Bulgaria. However, as in the preceding instances, justices for Supreme Administrative Court have also refused to accept jurisdiction for reviewing complaints against the lawfulness or correctness of administrative policies [“decrees” or “Orders”] of Bulgaria’s Minister for Justice and the practices [established by the nonjudicial “decisions” or Rulings”] of Sofia Central Penitentiary Administrators and Sofia Prosecutors Office. This Court has refused to accept claims form the Applicant Kapoustin and other Offenders despite the fact that the direct and indirect discrimination complained of have the legal character of an “administrative” act. This confirmed in letters from the Ministry for Justice and [decisions] of the Prosecutors Generals Office for the Republic of Bulgaria [see below section entitled “Policy and Law” and “Independent Confirmation”]. It is apparent from the decisions of the Supreme Administrative Court RB refusing to examine individual complaints and the Supreme Cassation Courts RB refusing to accept the complained of acts as discriminatory that these Bulgarian national courts are making no distinction between what is legislated national law inter alia the Law for Protection against Discrimination and having negative restrictions against discrimination; And what is unlegislated government policy inter alia the “decrees” or “orders” of the Minister for Justice and the unlegislated practices inter alia the “decisions” of the Sofia
5

No one is bound by what is impossible

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Central Penitentiary administration and those of the Sofia Prosecutors Office. It is unequivocal fact that the unlegislated policy and practice as complained of here requires Sofia prison officials and employees and prosecutors to make specific exceptions according to the nationality, property and public status of an Offender when applying the national law. What gives substance to the Applicants complaints and brings their Collective Complaint within the authority of the Council of Europe and legal ambit of the Committee and the Charter is the very fact of Bulgarian national courts refusing to accept jurisdiction or refusing to recognize a policy or practice of discrimination as one negatively affecting the rights of foreign citizens. The Republic of Bulgaria has no affective administrative oversight or judicial control for official policies or practices of alleged direct and indirect discrimination.

Final Remedy
The Government of Bulgaria and its national courts persist in refusing to acknowledge any harm or injury to the affected group from the complained of policies and practices of direct and indirect discriminations. According to the Government of Bulgaria there is no harm in its requiring the physical segregation and legal isolation of foreign Offenders from the benefits and protections of Bulgaria national laws and international treaties. Its permitting the formation of a “secret” prison tribunal [Committee] to take unmotivated judicial decisions affecting the legal rights and obligations of foreign citizens in Bulgaria is still “fair, impartial and independent”, at least according to the Ministry for Justice RB. Allowing a foreign Offender’s property or public status to determine his legal rights in Bulgaria, including his right to family and liberty for national repatriation are policies or practices not inconsistent with Bulgaria’s international agreements. Therefore, the Government of Bulgaria leaves the affected group no domestic remedy and so no other alternative but to turn to the Council of Europe and representatives of the other member states and to the Committee.

Confirmation of the Discriminatory Criteria
Conclusions
The policies and practices identified are inconsistent with the Charter and Bulgarian national law. Relying on nationality, property and social status as providing a reason to derogate from valid social, economic and legal protections

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is inconsistent with Article 16 of the Charter when read with the nondiscrimination clause of the Charter preamble. Also, the Minister for Justice and Prosecutors General for the Republic of Bulgaria have exceeded their constitutional jurisdiction when “creating law” in policies or practices for “segregation and isolation” according to nationality, property and social status. Policies and practices expressly prohibited by national law [see as authority Article 4 of the Law for Protection against Discrimination]. The systematic and systemic official policies and practices of negative discrimination by the Government of Bulgaria against individuals or a minority group in Bulgarian society is a conscious contravention of inter alia the non-discrimination guarantees of the Charter (as acceded to by the Republic of Bulgaria). These exist in breach of the non-discrimination provisions of the Bulgarian Constitution and recent human rights legislation as enacted by the Bulgarian parliament. The written defences for “segregation and isolation” and “secret tribunals” as offered by the Government of Bulgarian to the Applicants and their government is fact, res ipsa loquitur6, and all the proof the Applicants require for establishing their allegations of the Government of Bulgaria evading its responsibility to the Charter and Article 37 of the Statute of the Council of Europe and ignores completely the negative restrictions enshrined against discrimination in Article 14 of the European Convention on Human Right. Furthermore, international treaties and Bulgarian national law expressly prohibits the formation of judicial or quasi-judicial tribunals that act in secret and whose conducts and members are without accountability. AS a result, the Minister for Justice and Prosecutors General extending judicial or quasi-judicial authority to a prison Committees whose membership and conducts are defended by them as “secret” is legally impossible. It is also a recognised form of torture. Foreign Offender always in doubt of their legal right, the term or their imprisonment and when they will be permitted to leave the territory of the Republic of Bulgaria to be reunited with their families. These policies and practices of the Government of Bulgaria are inconsistent with the natural law and decries from the common principles, both legal and ethical, that have shaped the modern democracies of the European Union and
6

7

(law) thing speaks for itself Article 3 Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realization of the aim of the Council as specified in Chapter

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Council of Europe. The Republic of Bulgaria must be sanctioned by the other member states to the Council of Europe, including those whose citizens are not yet imprisoned in Bulgaria and whose families are not yet held financially hostage to the impossible ransoms demanded by the Government of Bulgaria to return their loved ones. It is therefore reasonable for the Committee to hear the concerns of the Applicants as follows.

Order for Review of the Applicants Concerns
(1) Non-discrimination – the Applicants’ Complaint alleges the Republic of Bulgarian as failing to observe its Positive Obligation to inter alia guarantee imprisoned citizens of Serbia and Montenegro, other European States and Canada their right to equal access to a criminal court of law for assessing their eligibility for parole; their right to equal access to institutional [prison] housing of the open and intermediate types; their access to gainful employment opportunities according to a [foreign] Offender’s individual ability, the length of his sentence and nature of his conviction and; their right of equal and fair access to institutional and other facilities for education, recreation and self-improvement; Protection from Exclusion – the Applicant’s Complaint alleges the Republic of Bulgarian as failing to observe the Negative Restriction against inter alia relying on the criteria of an [foreign] Offender’s nationality, the property status of the [foreign] Offender’s family and any prevailing public or political enmity towards an individual [foreign] Offender as a reason for that [foreign] Offender’s exclusion from the opportunities, legal rights and social protections found in Bulgaria’s national laws and under international treaties. The Applicants are concerned that Bulgarian Minister for Justice “DECREE” № LC-04-277 and others ordering “the segregation and isolation” of foreign Offenders acts only to exclude non-Bulgarian Offenders from social and remedial opportunities and the social protections found in Bulgaria’s national laws and its international treaties. The ambit of this exclusion includes but is not limited to inter alia excluding [foreign] Offenders from Bulgarian national laws for economic, social and legal protection of the family, from accessing available intermediate and open type prison housing, the right to equal opportunity employment, educational and recreation facilities, and to be recognized for their good behaviour.

(2)

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(3)

Protection from Exclusion - the Applicant’s Complaint alleges the Republic of Bulgarian as failing to observe its Positive Obligation to treaty bona fides as found in the preambles of the European Convention on the Transfer of Sentenced Persons and the Convention on the International Validity of Criminal Judgments (jointly and severally referred to as the “Conventions on Transfers”) and “the need to respect human dignity and to promote the rehabilitation of offenders”. The Applicants are concerned with Bulgaria’s Prosecutors General excluding [foreign] Offenders from their accessing the Conventions on Transfers whenever the families of those Offenders do not meet the minimum property criteria established by the Prosecutors General. Bulgaria’s Prosecutors General refusing to process the transfer applications of those [foreign] Offenders lacking the resources to pay fines to the Bulgarian State or unable to settle contractual obligations to a Bulgarian citizen.

(4)

Movement of Persons – Positive Obligation id est that the Republic of Bulgaria is not observing its positive obligation to guarantee to citizens of Serbia and Montenegro other European States and Canada their right to freedom of movement to leave Bulgaria except where such liberty of movement is prohibited by virtue of a lawful criminal sentence or by Order of a court having competent legal jurisdiction to impose a deprivation of liberty; The Applicants are concerned that the Government of the Republic of Bulgaria relies on the property status of their families to deprive them the Applicants of their liberty to leave Bulgarian territory. Article 39a abstract 5 and 43 of the Bulgarian Law for Foreigners in the Republic of Bulgaria allowing for administrative and non-judicial deprivations of a foreign citizen’s liberty solely on account of any uncollectible civil or administrative money debts they may have to the State or citizens of Bulgaria.

(5)

Movement of Persons - Deprivation of Liberty –Negative Restriction id est that the Republic of Bulgaria is not observing the negative restrictions against the any legislation or practice that allows for a non-judicial [administrative] deprivation of liberty and the right to freedom of movement to leave Bulgaria on the allegation of a citizen of Bulgaria or Bulgarian Government agency official of a unpaid contractual or other debt. Right of the Family – Positive Obligation id est that the Republic of Bulgaria is not observing its positive obligation to guarantee to citizens of Serbia and Montenegro, other European States and Canada

(6)

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the necessary conditions for the full development of the family, which is a fundamental unit of society. The Applicants are concerned with Bulgaria excluding Citizens of Serbia and Montenegro, other European States and Canada from the European Convention on the Transfer of Sentenced Persons. Article 39a abstract 5 and 43 of the Bulgarian Law for Foreigners in the Republic of Bulgaria creating impossible financial obstacles that act to prevent the Applicants from completing what remains of their criminal sentences near their families and societies. As a result, the principles of the Convention are not observed by Bulgaria’s Minister for Justice and Attorneys General, they having made a [foreign] Offenders “public image’ and “property status” the “admissibility criteria” for access to any procedure under the Convention. The Applicants are concerned that [foreign] Offenders who are “well known” to the Bulgarian media and whose families have insufficient resources to settle contractual or debt obligations to Bulgarian citizens or the State are being routinely denied access to the Convention and their requests for transfer; (7) Right of the Family – Negative Restriction id est that the Republic of Bulgaria is not observing the negative restrictions against unequal access and negative bias in the application of Bulgaria national laws [the Criminal Code] to convicted citizens of Serbia and Montenegro other European States and Canada and having completed half or more of their sentence in Bulgaria. The Applicants are concerned that they are routinely denied social rights and legal protections and procedures otherwise made available to Bulgarian first time offenders having served better than half of their criminal sentence, Bulgarian national law requires that every two months there be an administrative review of an Offender’s right to unsupervised home leave or a judicial review of that Offenders possible parole. Bulgaria’s Criminal Code and correctional law [Law for the Execution of Punishments] thereby acting to preserve the necessary conditions for the full development of a family [Article 16 Charter] and the reintegration into society of a Bulgarian Offender. According to Bulgarian national law unsupervised home leave or judicial review of parole is a positive obligation of the State in cases where Offenders have formally served half or more of their sentence and

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whose behaviour is formally consistent with the requirements of Article 70 §1 of the Bulgarian Criminal Code. Home leave and parole are “social opportunities” or “social rights” provided as provisions in the Bulgarian Criminal Code and correctional law. Bulgarian national law does not have any provision for denying, restricting or otherwise limiting these “social opportunities” or “social rights” according to the criteria of an Offender’s nationality or the property status of the Offender’s family. Furthermore, Bulgarian human rights legislation [the Law for Protection against Discrimination], the Charter and other European Council agreements have expressly imposed negative restrictions on Bulgaria derogating from such “social opportunities” or “social rights” according to nationality or other status of the Offender. The Applicants are concerned that the prevailing Bulgarian practice finds the Bulgarian Minister for Justice, the Prosecutors General for Bulgaria and Bulgarian District Courts refusing home leave to [foreign] Offender when petitioning to meet with their family in Bulgaria. The Applicants are concerned that the prevailing Bulgarian practice finds the Bulgarian Minister for Justice, the Prosecutors General for Bulgaria and Bulgarian District Courts rejecting the paroling of all [foreign] Offenders who are unable to disprove certain “negative facts” inter alia that; (1) “they do not pose a further and continuing danger to Bulgarian society”; (2) “that prosecutors and prison officials are wrong when alleging [foreign] Offenders have ‘not been rehabilitated” during their confinement”, and; (3) that “the Offender’s family has not proven it has insufficient property or cash to settle any contractual or financial obligations of the Offender to Bulgarian citizens or the State”. As a result of the above a [foreign] Offender must remain in a Bulgarian prison without any possibility of parole or transfer until he can prove these negative facts.

Request before the Committee
Proceeding from the foregoing, it appears therefore reasonable for the Applicants to petition a Contracting Party to the Statue of the Council of

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European and the European Social Charter for sponsorship or assist in bringing a Collective Complaint for its’ citizens and those others affected by the above. The Collective Complaint requests that the European Committee of Social Rights (the “Committee”) find that Bulgaria fails to apply in a satisfactory manner to non-Bulgarian Offenders their right and that of their family to social, legal and economic protection, to non-discrimination in the application and practice of Bulgarian national laws and to protection from exclusion from Bulgarian national laws. Dated: Thursday, June 30, 2005 Nikolai Vasich Citizen of Serbia and Montenegro

Michael Kapoustin Citizen of Canada 10th Prisoners Group Sofia Central Penitentiary Sofia Bulgaria