You are on page 1of 33

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 Prepared by: Michael Kapoustin


Citizen of Serbia and Montenegro Citizen of Canada
10th Prisoners Group
Sofia Central Penitentiary
Sofia Bulgaria
M. Kapoustin Page 3 6/30/2005

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;
2. 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;
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
M. Kapoustin Page 4 6/30/2005

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
M. Kapoustin Page 5 6/30/2005

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


M. Kapoustin Page 6 6/30/2005

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 non-
discrimination 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.
M. Kapoustin Page 7 6/30/2005

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
M. Kapoustin Page 8 6/30/2005

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;

2. 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;

3. 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;

4. 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;

1 a case clearly coming within the provisions of a treaty.


M. Kapoustin Page 9 6/30/2005

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. [Non-Bulgarian] nationality [id est of the Offender];

b. Public status [id est of the Offender];


c. 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
M. Kapoustin Page 10 6/30/2005

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.
M. Kapoustin Page 11 6/30/2005

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”.
M. Kapoustin Page 12 6/30/2005

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
M. Kapoustin Page 13 6/30/2005

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
M. Kapoustin Page 14 6/30/2005

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.
M. Kapoustin Page 15 6/30/2005

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.
M. Kapoustin Page 16 6/30/2005

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
M. Kapoustin Page 17 6/30/2005

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.
M. Kapoustin Page 18 6/30/2005

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.
M. Kapoustin Page 19 6/30/2005

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. …
M. Kapoustin Page 20 6/30/2005

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 quasi-
judicial 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].
M. Kapoustin Page 21 6/30/2005

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

4
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.
M. Kapoustin Page 22 6/30/2005

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.
M. Kapoustin Page 23 6/30/2005

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
M. Kapoustin Page 24 6/30/2005

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
M. Kapoustin Page 25 6/30/2005

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 “…co-
operation [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
M. Kapoustin Page 26 6/30/2005

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 non-
judicial “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
M. Kapoustin Page 27 6/30/2005

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
M. Kapoustin Page 28 6/30/2005

is inconsistent with Article 16 of the Charter when read with the non-
discrimination 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
(law) thing speaks for itself
7
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
M. Kapoustin Page 29 6/30/2005

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;

(2) 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.
M. Kapoustin Page 30 6/30/2005

(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.

(6) 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
M. Kapoustin Page 31 6/30/2005

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
M. Kapoustin Page 32 6/30/2005

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
M. Kapoustin Page 33 6/30/2005

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