2005.08.09_DISCRIMINATION History of Complaints Helsinki Committee

8/14/2019 2005.08.09_DISCRIMINATION History of Complaints Helsinki Committee

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Bulgarian Helsinki Committee

Mr. Stanimir Petrov

7 Varbitsa Street4th Floor

1504 Sofia

Bulgaria

From:

Michael Kapoustin

10th

Prisoners Group

Citizen of Canada

Sofia Central Penitentiary

Dear Mr. Petrov,

Ive sent you this second copy simply because I cannot be sure if the prison has mailed

the original letter for me.

I apologize if this is redundant,

Saturday, November 13, 2004

Michael Kapoustin

2004.11.14_Helsinki_Petrov Group Complaints EC.doc


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Mr. Stanimir Petrov


1504 Sofia

Bulgaria

From:

Michael Kapoustin

10th

Prisoners Group

Citizen of Canada


Dear Mr. Petrov,

On August 9th, 2002 you wrote me at the request of Human Rights Watch USA.

In your letter you advised me that the complaints made by me and other non-

Bulgarian convicts against Minister for Justice ORDER LC-04-277 and

similar ORDERS would be analyzed by the Helsinki Committee in its

September 2002 Report.

I did not continue my dialogue with you and the Committee for several reasons.

First, I have completed my 9th

year of prison in Bulgaria. In that time I have

seen many prisoners write your committee. Few, if any have received anything

concrete in the way of substantive assistance with their complaints of official

malfeasance or misfeasance in the interpretation and application of national and

international laws.

Second, I have not read the September 2002 Report. However, the Minister for

Justice Republic of Bulgaria probably has and is unconcerned with your

organizations findings. Such indifference towards violations of Bulgarian

national law and the work of the Helsinki Committee are made all the more

obvious by the fact that ORDER LC-O4-277 was amended and reissued on04.10.2002. The September 2002 Report apparently having no effect.

The negative discrimination complained of by me to Human Rights Watch

continues to be practiced by officials in each of the different Directorates of the

Ministry for Justice. The nationality and economic status of a convict continues

to determining how articles of Bulgarian national laws are to be applied or if

they are to be applied at all to non-Bulgarians.



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Therefore, I seriously doubted that much could be accomplished by writing

your Committee. My reasoning derived from the fact that the discrimination

continues today and is unabated by the Bulgarian Minister for Justice. This notwithstanding the Helsinki Committees Report or even the recently enacted

Bulgarian Law for Protection against Discrimination. No one in the Bulgarian

government concerned over the legal rights of approximately 170 foreign

convicts in Bulgarian prisons.

In a 13.09.2004 and 16.09.2004 letter to me and other foreign convicts, the

Bulgarian Minister for Justice took the position that individuals, who are not

Bulgarian citizens[are to be]placed in isolation [seg regated]from the living

and working places of others [Bulgarians] at the Sofia Central Penitentiary. No

legal, practical, ethical or moral reasons were proved to explain why.

Furthermore, the Minister for Justice took the position that a number of

Bulgarian articles of law did not apply to non-Bulgarians id estsince there is

no legal grounds for requiring the relocating of foreign prisoners to prison

hostels of the open or transitional type.

Ergo, according to the Bulgarian Minister for Justice, since Bulgarias

legislators provided no specific provision or wording in the Law for the

Execution of Punishmentrequiring each article of law to be applied equally to a

foreign convict id est the article requiring convicts be housed in open prison

hostels if having less than 5 years remaining of their sentence and the article

requiring convicts be provided gainful employment while in prison, each twoworking days reducing their sentences by an additional day are articles of law

not containing within any text requiring their application or equal application

to foreign citizens. The Minister for Justices interpretation is the following,

that since the Law for the Execution of Punishments creates no such positive

obligation or negative restriction for its equal application to foreign citizens, the

Minister for Justice is therefore under no duty to see all its provisions applied

equally or at all to convicts who are foreign citizens and the Minister is not

restricted by the law from its the unequal application according to a convicts

nationality or economic and social status.

It is incontrovertible to conclude that any application of an article of Bulgariannational laws by the Ministry for Justice solely according to a convicts

nationality or his economic or social status is a practice inconsistent with the

legislative purpose of those laws. Such direct discrimination contradicts not

only Bulgarian human rights legislation and basic law, but all Bulgarias

fundamental agreements respecting civil, human and social rights. However,

Bulgarian Minister for Justice Stankov appears unmoved by such contradictions

and violations, as does the Prosecutors General for Bulgaria Mr. Filchev.



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That having been said, I decided once again to attempt and see if the Helsinki

Committee would be prepared to assist the 25 or more foreign convicts prepared

and unafraid to file a collective complaint before the Council of EuropeCommittee of Social Rights and the European Unions Commissioners for

Justice and Human Rights.

To this end my questions must be the following.

Is the Helsinki Committee registered as an organization entitled to lodge

collective complaints with the Committee of Social Rights and alleging

violations of the Charter?

If not, then would the Helsinki Committee contact for us an NGO that is

so registered with Council of Europe Committee of Social Rights?

Would the Helsinki Committee be prepared to work with me in the

preparation in English of such a Complaint?

The grounds for the complaint can be found in the right to Non-discrimination,

equal treatment and equal opportunities andtherightto Movement of persons,

non-nationals allowed to leave the country regardless of nationality or social

economic status and debt as being rights guaranteed by the European Social

Charter and concerning all individuals in their daily lives, even convicts. :

We need your help and hope for it to be more than a only letter and a reference

to some ineffectual Report. And, some concreter legal and collective steps taken

to end these abuses of the fundamental social and human rights of the few

foreigners in Bulgarias prisons.

I look forward to and hope for your reply,

Saturday, November 13, 2004

Michael Kapoustin

cc.: Embassy of Canada



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Ms. Mila Boyanova


1504 Sofia

Bulgaria

From:

Michael Kapoustin

10th

Prisoners Group

Citizen of Canada


Friday, December 10, 2004

Ref: Your - P 936/07.12.04

Dear Ms. Boyanova,

Thank you for your letter of December 12th

2004. Can you please relay the

following to your Chairman Mr. Krassimir Kanev?

In advance I apologize for any typographical errors.

We are all grateful for the Helesinki Committer acknowleding the existance of

the complanted of discriminations.

Copies of your letter have been sent to the office of Canadas Minister for

Foreign Affairs, the Honourable Mr. Pierre Pettigrew M.P., to several members

of Canadas Parliament and to each of the foreign ministries for Albania,

Poland, Macedonia, Romania and Turkey.

Recently Canadas Minister for Foreign Affairs and members of Canadas

parliament have taken a keen interest in my case as have the other cited foreignministries in the cases of their nationals. Representatives for each of the foreign

ministries have expressed to our families their frustration at the apparent refusal

of the present Bulgarian administration to observe thebona fides of Bulgarias

international agreements.

Also as was requested, I will compile a list of those prisoners unafraid to

meet a representative of the Helsinki Committee and prepared to speak to

the complained of discriminations.I expect to have this list mailed to you by no

later than the middle of next week [December 15th

2004].

2004.12.09_Helsinki_Mila Boyanova Group Complaints EC.doc


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You should know that better than half of the 93 foreign nationals here are (1)

afraid to come forward for fear of the possible negative repercussions and

possible punishment, and (2) lack the necessary knowledge, education orlanguage skills to concretely and clearly formulate their complaints within the

ambits of national and international laws. Those of us who can are looking

forward to any such meetings or interviews with the Helsinki Committee. We

anxiously await a date.

Now permit me now to in a few paragraphs explain the collective objective of

those of us willing to speak out.

Each individual whose names will appear on the lists is willing to be party to

any domestic or international legal action that might put an end to astatus quo

finding foreign citizens segregated and isolated from equal access to and

protections under Bulgarias national laws and international agreements.

Also be advised that it is to no avail that we have deposited several written

complaints to Bulgarian Minister for Justice, the Honourable Mr. Anton

Stankov and to Bulgarias Prosecutors General Mr. Filchev.

Both Minister Stankov and Prosecutor Filchev have had their agencies in

different letters assert that the segregation and isolation of foreign citizen to

not be a form of negative discrimination and their institutions [Ministry for

Justice and Office of the Prosecutors General] have no positive obligation

or negative restriction in Bulgarian law against discrimination according to

a convicts nationality, his familys economic and social status and also

according to Bulgarian societies popular image of non-Bulgarian

convicts.

The result of these written correspondences from Bulgarian Government

officials, the decrees1of Bulgarian Minister for Justice Stankov, the internal

directives of the Bulgarian Prosecutors General and the Bulgarian prosecution

interpretation of national legislation [administrative law] regulating the stay of

foreigners in Bulgaria2

all gives us good reason to belief we could prevail in a

human rights lawsuit before a Bulgarian court of law or an international

tribunal. It is for this reason we are all turning for assistance from the

Helsinki Committee.

It is our collective objective to seek the assistance of the Helsinki Committee in

bringing human rights civil [rights] action(s) against the Bulgarian Minister for

Justice and relying on the causes of action found inArticle 4 and procedures of

Article 71 and the following of the Bulgarian Law for Protection against

Discrimination.

1 Minster for Justice inter alia DECREE LC-04-2772 Law for Foreigners in the Republic of Bulgarian



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I believe that we are capable of ourselves drafting the required Statement of

Claim and of framing it as an understandable cause of action. This only if the

Bulgarian Helsinki Committee cannot provide us the legal assistance of anattorney.

Mr. Kanev, our families having been reduced to near poverty by the cost of

supporting for many years our needs in food, medicine, clothing and attorneys

fees while in Bulgarian prisons. As a result, our families no longer have any

free resources to retain Bulgarian attorneys capable of pursuing such complex

legal remedies. As a result, we can only undertake legal action aspro se parties.

However, I have had extensive personal experience dealing with and appearing

before both the Sofia City Court and Sofia Regional Court civil departments. I

know that a [foreign] convict bringing a civil rights Claim against Bulgarias

Minister for Justice or its Prosecutors General is fraught with practical and

procedural obstacles. The least of which is the pace at which the courts [the

SCC in particular] assign these particular cases to judges, not to mention the

duty judge attacking any such Claim with demands to resolve alleged

deficiencies. Only this has prevented us from having already sued under the

Law for Protection against Discrimination.

Unlike the Roma population in Bulgaria, and the convicts in European and

Canadian prisons, there is no human rights support group for convicts in

Bulgaria, never mind non-Bulgarian convicts.

Mr. Kanev it is here that we believe the Bulgarian Helsinki Committee can

offer some practical assistance.

Our collective request and first preference would be for the Bulgarian Helsinki

Committee to sponsor a human rights complaint or lawsuit before a Bulgarian

court of law and directly assist us with attorneys.

If this is not possible, then our second request and preference would be the

Bulgarian Helsinkitoact as monitor of the human rights proceedings we

would initiate before a Bulgarian court. And, to provide us with some

human resources inter alia legal aid [human rights attorney] consultant to

review and make suggests on how to improve the our complaint and legalreasoning.

As a monitor, the Bulgarian Helsinki Committee could indirectly ensure that

our procedural rights as foreign Plaintiffs are observed by Bulgarian courts in

s reasonable and timely manner, notwithstanding we are non-Bulgarian

convicts. Significantly, the Bulgarian Helsinki Committee would in this way

also ensure that we do not become the victims of further malfeasances

designed to dissuade our pursuit of a judicial remedy.



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In closing I would like you and the Helsinki Committee to know that each of

considers the present practices as a form of psychological torture. Many of us

are over 50 and quickly losing hope of ever seeing our families or countries.Recently one of our number died after 9 years of prison, he should have been

paroled more than a year ago. His wife and son in the Ukraine still do not know.

There is another number of us, a Turk, who is also closing in on deaths door and

should have been paroled over a year ago and transferred long before that. He

will die if not allowed to return to Turkey for medical care.

It is a fact that Bulgarian prison administrators consider their conduct as

sanctioned by the decrees of the Bulgarias Minister for Justice and the

Prosecutors General. The practice of negative discrimination made lawful and

leads naturally to making conditional the opportunity of parole or transfer

(Convention for the Transfer of Sentenced Persons) according to nationality,economic social status of a convicts family and the Bulgarian publics

perception of the [foreign] convict(s) Bulgarias Minister for Justice and

Prosecutors General have explained in letters to us that this conduct of the

prison administration and prosecutors is consistent with Bulgarian national law

and international agreements.

As a whole, what is more fraustrating and distubing is that the complained of

discrimnations are in clear violation of recently enacted Bulgarian human rights

legislation and therefore unlawful.We can prove this but need to do so with

your help, the support of our governments and probably the courts and press.

I wait to hear from you,

Michael Kapoustin



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Ms. Mila Boyanova


1504 Sofia

Bulgaria

From:

Michael Kapoustin

10th

Prisoners Group

Citizen of Canada


Thursday, December 23, 2004

Ref: Your - P 936/07.12.04

Dear Ms. Boyanova,

As always please excuse typographic errors.

As promised on the attached pages and according to the category of

discrimination, complaint, I submit to the Helsinki Committee the names from

93 foreign nationals ready to come forward with their complaints and looking to

meetings or interviews with a representative(s) of the Helsinki Committee.

The data may be summarized as follows.

Attachment 1 Housing - Direct Discrimination According to Nationality

Individuals Affected 38

Non-Bulgarian Offenders refused relocation to prison housing of the open or

intermediate types solely according to the criteria of their nationality. This

notwithstanding the law requires their relocations if having five (5) years or less

remaining to their sentence.

Attachment 2 Probation - Direct Discrimination According to Nationality

Individuals Affected 23

Non-Bulgarian Offenders advised by representatives of the Bulgarian Ministry

for Justice that they are not eligible for probationary release solely according to

the criteria of their nationality, and this notwithstanding the Offender has three

(3) years or less remaining to their sentence and having the legal right to

probationary release on January 1st 2005. Furthermore, the Sofia prison

administration either confused or unwilling to clarify on how this new law will



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be applied to first time Offenders who are already sentenced and incarcerated

but have a sentence of three (3) years or less or to those Offenders having 3

years or less remaining from a larger sentence. However, the Sofia prisonadministration is unequivocal in its insistence that this law will not be applied to

non-Bulgarians.

Attachment 3 Transfer - Direct Discrimination According to Property

Status

Individuals Affected - 63

Non-Bulgarian Offenders having been refused requests for transfer under the

European Convention for the Transfer of Sentenced Persons solely according to

the criteria of theirproperty status in Bulgaria.

Attachment 4 Parole - Indirect Discrimination according to Nationality

and direct discrimination according to Property Status

Individuals Affected - 29

Non-Bulgarian Offenders are refused judicial review of their legal status under

the procedures ofArt. 415 and the following of the Criminal Code of Procedure

solely according to the criteria of their nationality and property status, and

this not withstanding the [Foreign] Offender having satisfied all the

requirements ofArticle 70 sect. 1 of the Criminal Code.

Attachment 5- Case No. 7380/2004 Supreme Administrative Court

Complaint of Direct and Indirect Discrimination

I provide a copy (in my poor Bulgaria) of arguments submitted under this case

as brought by me against the Bulgarian Ministry for Justice. During the week of

December 27th 2004 I will submit the names of addition Plaintiffs effected by

the alleged direct and indirect discriminations.

This is the first time any Bulgarian court has agreed to affect even the pre-

trial action of collecting evidence from the Minister for Justice.

I sincerely believe that the case will be helped and their a greaterpossibility of a trial if the Helsinki Committee would file a motion with the

Court to appear asAmicus Curae for the Plaintiffs by sumitting its findings

on the discrimination in Bulgarian prisons against non-Bulgarian

Offenders.

When can I expect to hear from the Committee?

Michael Kapoustin



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Attachment 1 Housing Direct Discrimination According to Nationality

1 = Yes

.

5

3

.

70

2 0 1 1 0 9

7 0 1 1 0 9 1 0 1 1 1 8 4 0 1 1 1 3

3 0 1 1 0 1 4 0 1 1 1 9 2 1 1 1 1 4 1 1 1 1 10 8 1 1 0 1 10 5 0 1 1 1 7 6 1 1 1 1 5

4 1 1 0 0 6 2 1 1 1 1 6 3 0 1 0 0 9 8 1 1 0 0 5 4 1 1 0 0 5 5 1 1 1 0 10 8 1 1 0 0 7 6 1 1 1 1 11 9 1 1 0 0 1 4 0 1 1 0 9 3 0 1 1 1 9

8 1 1 0 1 10 6 1 1 1 1 11 11 1 1 1 0 11

8 1 1 0 1 4 7 1 1 0 0 5 8 1 1 1 1 10 6 1 1 1 1 4

8 1 1 0 1 7 3 1 1 1 1 10

2 0 1 1 1 7 8 1 1 0 1 6 9 1 1 0 1 4 8 1 1 0 0 5 6 1 1 0 0 10 7 1 1 0 0 10 3 0 1 1 1 11

TOTAL 38



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Attachment 2 Probation Direct Discrimination According to Nationality

1 = YES

.

3 . 70

2 0 1 0 9 7 0 1 0 9 1 0 1 1 8

4 0 1 1 3 3 0 1 0 1 4 0 1 1 9 2 1 1 1 4 1 1 1 10 5 0 1 1 7 6 1 1 1 5 2 1 1 1 6 5 1 1 0 10 6 1 1 1 11 4 0 1 0 9 3 0 1 1 9 6 1 1 1 11 11 1 1 0 11 8 1 1 1 10 6 1 1 1 4 3 1 1 1 10 2 0 1 1 7 3 0 1 1 11 7 1 1 1 11

TOTAL 23



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Attachment 3 Transfer - Direct Discrimination According to Property Status

1 = YES

.

5

3

.

70

2 1 1 1 1 4 1 1 1 1 10 6 1 1 1 1 5

2 1 1 1 1 6 5 1 1 1 0 10 6 1 1 1 1 11 6 1 1 1 1 11 11 1 1 1 0 11

8 1 1 1 1 10 6 1 1 1 1 4

3 1 1 1 1 10

7 1 0 1 1 11

8 1 1 0 1 10 4 1 1 0 0 6 8 1 1 0 0 5 4 1 1 0 0 5 8 1 1 0 0 7 9 1 1 0 0 1 8 1 1 0 1 10 8 1 1 0 1 4 7 1 1 0 0 5 8 1 1 0 1 7 8 1 1 0 1 6

9 1 1 0 1 4 8 1 1 0 0 5 6 1 1 0 0 10 7 1 1 0 0 10 15 1 0 0 0 2 12 1 0 0 0 10 17 1 0 0 0 5

12 1 0 0 0 7

12 1 0 0 0 6 10 1 0 0 0 8 12 1 0 0 0 10

10 1 0 0 0 8 15 1 0 0 0 7 13 1 0 0 0 3 16 1 0 0 0 7 10 1 0 0 0 10 11 1 0 0 0 2

15 1 0 0 0 1 12 1 0 0 0 10 10 1 0 0 0 8 12 1 0 0 0 4

15 1 0 0 0 7 17 1 0 0 1 2



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13 1 0 0 0 6 16 1 0 0 0 8 2 1 0 0 1 1

18 1 0 0 0 5 10 1 0 0 0 10 12 1 0 0 0 11 12 1 0 0 0 3

10 1 0 0 0 4 15 1 0 0 0 10 10 1 0 0 0 6 17 1 0 0 0 6 10 1 0 0 0 10 10 1 0 0 0 11 10 1 0 0 0 10 18 1 0 0 0 11 10 1 0 0 0 5 16 1 0 0 0 10

TOTAL 63



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Attachment 4 Parole - Indirect Discrimination according to Nationality and direct

discrimination according to Property Status

.

5

3

.

70

1. 2 1 1 1 1 4 2. 1 1 1 1 10 3. 6 1 1 1 1 5

4. 2 1 1 1 1 6 5. 6 1 1 1 1 11 6. 6 1 1 1 1 11 7. 8 1 1 1 1 10 8. 6 1 1 1 1 4

9. 3 1 1 1 1 10

10. 7 1 0 1 1 11 11. 8 1 1 0 1 10 12. 8 1 1 0 1 10 13. 8 1 1 0 1 4

14. 8 1 1 0 1 7 15. 8 1 1 0 1 6 16. 9 1 1 0 1 4 17. 17 1 0 0 1 2 18. 2 1 0 0 1 1

19. 1 0 1 1 1 8 20. 4 0 1 1 1 3

21. 4 0 1 1 1 9 22. 5 0 1 1 1 7 23. 3 0 1 1 1 9 24. 2 0 1 1 1 7 25. 3 0 1 1 1 11 26. 2 0 0 0 1 9 27. 3 0 0 0 1 9 28. 0 0 0 0 1 1 29.

16 0 0 0 1 9

TOTAL 29



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Attachment 5- Case No. 7380/2004 Supreme Administrative Court Complaint of

Direct and Indirect Discrimination



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I submit the following requests in the original English language with a Bulgarianlanguage translation as prepared by a recognized expert interpreter.

A. Additional Evidence

The Court is requested to accept into evidence the following true copies of original letters

issued by the Helsinki Committee of Bulgaria to the Plaintiff Kapoustin;

2004.12.29_7830.04_ SupAC 5th Dept_Addenum_Evidence_ENG.doc


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1. A December 7th 2004 letter having . -936, the Helsinki Committee ofBulgaria responding to a request for confirmation of the facts as alleged in the

Plaintiffs October 2004 Complaint to the Supreme Administrative Court for theRepublic of Bulgaria.

The significance of this letter is the Helsinki Committee confirming to the

Plaintiff Kapoustin that according to its independent international observes, those

Offenders who are not citizens of Bulgaria are indeed the victims of a policy and

practice of direct and indirect discrimination according to the criteria of

nationality. The Ministry for Justice and Office of the Prosecutors General for the

Republic of Bulgaria affording [denying] fewer legal rights and social protections

to those Offenders who are not citizens of Bulgaria and are legally eligible for

better prison housing, employment, education, unsupervised leave, medical leave,

probation [as of January 1st

2005], relief from state taxes to defend or prosecutecivil actions and the possibilities for transfer [Convention on the Transfer of

Sentenced Persons] or release on parole.

The Plaintiff Kapoustin and all other foreign Offenders serving their sentences in

Bulgarian prisons have a lesser legal status before officials of the Ministry of

Justice, Office of the Prosecutors General and the Sofia District Courts [civil,

criminal and administrative] than those Offenders who are citizens of Bulgaria

and serving their sentences in Bulgaria or other contracting member states to the

Council of Europe and Convention on the Transfer of Sentenced Persons.

The letter confirms the discrimination alleged by the Plaintiff in his originalOctober 2004 Complaint to this Court as being fact and not the invention of the

Kapoustin.

2. The August 9th 2002 letter issued by the Helsinki Committee of Bulgaria inresponse to a request by the Plaintiff Kapoustin for an independent investigation

of his allegations that there exists an official policy and practice of direct and

indirect discrimination. The Ministry of Justice Main Directorate for the

Execution of Punishments, prison Officials and Sofia district prosecutors

determining the application of Bulgarian national laws and international treaties

according to the criteria of an Offenders nationality and the property status of his

family. And doing so notwithstanding that the relevant and applicable national

laws determining rights and obligations id estthe Criminal Code, Criminal Codeof Procedure, Civil Code of Procedure and the Law for the Execution of

Punishments have no provisions for a different application of their articles

according to the nationality or property status of a criminal Offender.

This letter confirms to the Plaintiff Kapoustin, and therefore also to this Court,

that there exists an earlier and independent investigation of the discriminations as

conducted by the Helsinki Committee id estdirect discrimination according to the

criteria of nationality.



38/116

B. New Allegation Discrimination according toProperty Status

3. The Plaintiff Kapoustin requests the inclusion of an addition cause of action underSupreme Administrative Case 7380/2004.Grounds for the new cause of action are to be found inArticle 4 of the Law of

Protections against Discrimination id est the property status of foreignOffenders and their families is relied on as an administrative criteria for the

determining of legal rights and social protection under Bulgarian national laws

and international agreements.

It is complained that the Ministry for Justice and Prosecutors General for the

Bulgarian have instituted an administrative policy and practice directly

discriminating against [foreign] Offenders according to his and his familysproperty status [wealth].

Discrimination according to the criteria of nationality and property status is

administrative policy of the Ministry for Justice Main Directorate for the

Execution of Punishments Sofia and the Prosecutors General for the Republic of

Bulgaria in the fields of national law when determining legal rights, obligations

and opportunities underinter alia Article 70 1 of the Bulgarian Criminal Code;

Section I Article 415 [and the following] and Section III Article 442 [and the

following] of the Bulgarian Criminal Code of Procedure, and; Ministry for

Justice Sofia District Court Civil and Administrative Departments underArticle

63b 1 of the Civil Code of Procedure .

The Supreme Cassation Prosecutors Office for the Republic of Bulgarian inter

alio Prosecutor B. Toshev [. ] writing on behalf of the Prosecutors

Generalconfirmed in writing the existence of an official administrative policy

and practice for discrimination according to an Offenders property status. In

letter to different Offenders, Bulgarian Prosecutor B. Toshev [. ] wrote

that property status [wealth] of a [foreign] Offenders [and his family] will

ultimately determine the legal right to a judicial review of parole or to

transfer under theEuropean Convention in the Transfer of Sentenced Persons.

According to Prosecutor B. Toshev [. ] and other Bulgarian

prosecutors, the Prosecutors General for the Republic of Bulgaria has determined

that those legal procedures available to Offenders for the judicial assessment

of parole will be determined for Offenders who are not citizens of Bulgarian

according to their property status. A foreign Offenders eligibility for parole or

for transfer under the Convention is to determined by the Ministry for Justice and

Prosecutors General as meaning only those foreign Offenders having sufficient

property or cash to entitle them to a procedure of national and international law.



39/116

According to Prosecutor B. Toshev [. ] those foreign Offenders who

have sufficient cash [to pay the state of Bulgaria] will be allowed access to

Bulgarian courts and to procedures under international treaties.

According to Prosecutor B. Toshev [. ] it is official policy and practice

for those foreign Offenders who do not meet the property status demanded by the

district prosecutors to be administratively refused their legal right to a judicial

procedure [Article 415 et al and Article 442 et al] under the Bulgarian Criminal

Code of Procedure by both the district prosecutors and the Ministry for Justice

Main Directorate for the Execution of Punishments Sofia Central Penitentiary

Administrative Commission formed under Article 17 of the Law for the

Execution of Punishments.

The above is not consistent with international or national law.

ENACTMENT 7 from 27.06.1975 Of The Plenum Of The [Bulgarian]

Supreme Court Criminal Division ( 7 27. Vi. 1975 ..

)1

provides grounds for the Plaintiff Kapoustins allegations

that administrative decisions by theMinistry for Justice Main Directorate for

1 .

.

:1. , :

) 2.

3. 4.

, , .

, , , .

5. . 54 55 , ,

.70 , .

6. 7. 8. 9.

10.



40/116

the Execution of Punishments Sofia Penitentiary Commission according to Article

17 of the Law on the Execution of Punishments and the Sofia District Prosecutors

according to Article 70 1 CC denying to foreign Offenders their access to thelegal procedures of Article 415 CCP as inconsistent with national law. Offenders,

even those who are not citizens of Bulgaria and whose property status cannot

satisfy the demands of the Ministry of Justice and SCPO, are still entitled to the

same judicial procedures, legal rights and social protections made available to

citizens of Bulgaria

Therefore, administrative policies or practices that determine access to a judicial

procedure otherwise available under the national law cannot be lawfully

determined by the wealth or poverty of an individual. To so do inconsistent with

the principles of equity as it would give rights only to the wealth and deny the

same rights to the poor.

C. Additional Facts

Proceeding from the above, the Plaintiff Kapoustin has alleged direct and indirect

discrimination the result of administrative orders, policies and practices of the

Ministry for Justice Republic of Bulgaria inter alia 04

277/04.10.2002. among others.

Furthermore, the Plaintiff Kapoustin has made an additional allegation of direct and

indirect discrimination the result of administrative orders, policies and practices of

the Minister for Justice Republic of Bulgaria and the Prosecutors General for theRepublic of Bulgaria. They having determined in their official capacity that nationally

and property status should determine an Offenders access to legal rights and procedures

found in the Bulgarian Criminal Code of Procedure and the Convention on the Transfer

of Sentenced Persons.

These discriminations as alleged by the Plaintiff Kapoustin before the Supreme

Administrative Court affects the legal rights and social protections of all foreign citizens

deprived of their liberty in the Republic of Bulgaria and serving criminal sentences here,

they do not only affect the Plaintiff Kapoustin.

As a result, the Plaintiff Kapoustin submits the following statistical data and asks it

be accepted into evidence.

These statistics are significant to the Plaintiff Kapoustin and others proving the

complained of discriminations to be organized as official polices and practices of the

Ministry for Justice and Prosecutors General of the Republic of Bulgaria.



41/116

The statistics are necessary to proving the complained of discriminations as being

systematically implemented by the Ministry for Justice Main Directorate for the

Execution of Punishments Sofia and Sofia District Prosecutors Office and to proving anunlawful derogation of the legal rights and social protections of all foreign Offenders in

Bulgarias Sofia Central Penitentiary.

Proof of this systematic abuse of legal rights and social protections can be found in

the following statistics.

There are 93 sentenced foreign nationals at Sofia serving their punishments, of these;

4. 38 Individuals are affected by Direct Discrimination According toNationality in the field of correctional law on prison Housing

Non-Bulgarian Offenders refused relocation to prison housing of the open or

intermediate types solely according to the criteria of their nationality. This

notwithstanding the law requires their relocations if having five (5) years or less

remaining to their sentence.

5. 23 Individuals Affected Direct Discrimination According to Nationality inthe field of the criminal and correction law on Probation

Non-Bulgarian Offenders advised by representatives of the Bulgarian Ministry for

Justice that they are not eligible for probationary release solely according to the criteria

of their nationality, and this notwithstanding the Offender has three (3) years or lessremaining to their sentence and having the legal right to probationary release on

January 1st 2005. Furthermore, the Sofia prison administration either confused or

unwilling to clarify on how this new law will be applied to first time Offenders who are

already sentenced and incarcerated but have a sentence of three (3) years or less or to

those Offenders having 3 years or less remaining from a larger sentence. However, the

Sofia prison administration is unequivocal in its insistence that this law will not be

applied to non-Bulgarians.

6. 63 Individuals Affected - Direct Discrimination According to Property Statusin the field of treaty law, Transfer

Non-Bulgarian Offenders having been refused requests for transfer under the European

Convention for the Transfer of Sentenced Persons solely according to the criteria of

theirproperty status in Bulgaria.



42/116

7. 29 Individuals Affected Indirect Discrimination according to Nationality anddirect discrimination according to Property Status in the field of criminal

law concerning eligibility for Parole.

Non-Bulgarian Offenders are refused judicial review of their legal status under the

procedures of Art. 415 and the following of the Criminal Code of Procedure solely

according to the criteria of their nationality and property status, and this not

withstanding the [Foreign] Offender havingsatisfied all the requirements ofArticle 70

sect. 1 of the Criminal Code.

D. Additional Request

That the Court Order the Ministry for Justice to confirm to the Court the

aforementioned statistical data as true.

That the Court request from the Bulgarian Helsinki Committee a true copy

of its September 2002 report.

That the Court confirms accepting the above into evidence.

Respectfully

30.12.2004 .

Michael Kapoustin



43/116



44/116



45/116


Ms. Mila Boyanova


1504 Sofia

Bulgaria

From:

Michael Kapoustin

10th

Prisoners Group

Citizen of Canada


Monday, January 24, 2005

Ref: Your - P 936/07.12.04

Dear Ms. Boyanova,

On December 23 2004 I wrote you and provided the information requested in

your letter of December 7th

2004. To this moment not I or any of the other

foreign Offenders needing your assistance have been contacted by you or other

representatives of the Bulgaria Helsinki Committee.

Will a Committee representative in Bulgaria be contacting us? And will the

Committee consider assisting us before a Bulgarian national court(s)?

I and the others at the Sofia Prison Foreign Offenders Group 10 would

appreciate any answer, negative or positive.

Furthermore, I again reconfirm earlier written requests for the assistance and

possible involvement of the Bulgarian Helsinki Committee under Article 72

section 1 last hypothesis of the Bulgarian Law of Protection from

Discrimination.

Alternatively, if the Bulgarian Helsinki Committee is not interested in directly

helping non-Bulgarian prisoners with their human rights complaints, then would

the Bulgarian Helsinki Committee consider writing a letter to the Supreme

Administrative Court for the Republic of Bulgaria 5-th Division theHonorable Marina Mihailova / , Ekaterina

Grincharova / and Jeanette Petrova /

presiding and suggesting in its own words the positive affect of

their proceeding to a public hearing of the facts, evidence and arguments

on how Bulgarian laws and justice are administered and applied differently

to those Offenders who are not citizens of Bulgarians?

2005.01.24_Helsinki_Boyanova No Reply WHY.doc


46/116

The court and case number is the Supreme Administrative Court for the

Republic of Bulgaria 5-th Division case 7380/2004. However, the fact that

theSupreme Administrative Court for the Republic of Bulgaria has agreed toa preliminary examination of official Government of Bulgaria policies and

practices of discrimination is by no means an assurance of their proceeding to

hear the complaints or of a trial.

Therefore, I have written you again in the hope securing direct participation in

judicial proceedings of the Bulgarian Helsinki Committee, or in the least help

towards securing a public judicial hearing of our complaints. The requested

letter from the Bulgarian Helsinki Committee would if nothing else give

cause to the Supreme Administrative Court to at least pause before

denying 94 foreign Offenders their day in court.

I or another of the foreign citizens here will attempt to contact you by phoneduring the first week of February.

Sincerely,

Michael Kapoustin

cc:

Helsinki head offices

2005.01.24_Helsinki_Boyanova No Reply WHY.doc


47/116

The Chairman

Mr. Krassimir Kanev. 7

. 4

, 1504

From:

Michael Kapoustin

10th

Prisoners Group

Citizen of Canada


Friday, March 11, 2005

Ref: Your - P 936/07.12.04

Dear Krassimir Kanev,

I have written several letters to your organization, the last was on January 24th

2005 to Ms. Mila Boyanva. The only response I have ever received from the

Bulgarian Helsinki Committee was on 07.12.2004 and since then there is only

silence. Considering my circumstances and that of the other foreign prisoners

here, your silence is more than a little distressing.

However, not withstanding the apparent indifference and for the sake of ourcollective posterity I will continue to write.

First, to keep your organization appraised of any developments before the

courts. The Supreme Administrative Court has accepted 2 of 4 discrimination

complaints I filed (see attached Definition No. 820/27.01.2005 as attached). I

appealed the rejected parts (see attached Appeal from 16.2.1005).

Second and most important is the continued cry for help, for clearly as a foreign

lay person waging this battle alone, from within prison and without any legal

assistance from a Bulgarian profession is a something of a monumental task.

Is it doomed to failure? Possibly, but only if individuals like yourself andorganizations like the Bulgarian Helsinki Committee continue to stand on the

side watching without offering any help. There is merit to our complaints, and

those complaints have to be expanded to encompass discriminations denying

legal rights and obligations to Bulgarian and foreign convicts according to their

property and public (social) status.

I have documented this discriminatory policy and practice as applied by the

Sofia Prison Administration when determining a convicts right of access to a

judicial proceeding under Article 70 sect. 1 of the Bulgarian CC.


48/116

I have also documented written interpretations on the subject of parole as issued

by the Supreme Cassation Prosecutors Office, the Ministry for Justice Main

Direction for the Administration of Punishments and as found in interpretingdecisions issued at General Meetings of Supreme Cassation Court Criminal

College. These interpretations clearly contradict the policies and practices of the

Ministry for Justice Main Director for the Administration of Punishment as

published in a document that clearly states that the right of access to a parole

procedure is determined according to a convicts property status.

I intend to bring before the Supreme Administrative Court and within the same

complaint these discriminatory polices and practices, if the court will allows it.

The complaints presented by me to the court are legitimate and I think well

thought out. They most certainly are not frivolous and the affected rights denied

to me and other like is done in violation of Bulgarian national law and itsinternational agreement. The question of law and fact to be determined by the

Court are serious as they will determine our right to access humane treatment

and Bulgarian laws designed to protect that humanity and the social integrity

and cohesion of the family..

Mr. Kanev, you and the Bulgarian Helsinki Committee can continue to act as if

we do not exist and to refuse us even the most modest assistance inter alia

under Article 21 of the Law for the Supreme Administrative Court the

Bulgarian Helsinki Committee may enter the case as Amicus Curiae or by

amicus brief. Or to write back and refuse us any help.

In the end though we are all judged not only by what we have done but also bywhat we have refused to do. I am guilty of both sins. However, my present

actions are determined by my conscience and humanity, even if I am viewed

with enmity by some.

I sincerely hope that your conscience and humanity will permit you to help us,

notwithstanding any enmity you personally may have against me or any other

convict. But I will still keep writing you.

Sincerely,

Michael Kapoustin

cc:

Helsinki head offices


49/116


Mr. Stanimir Petrov

7 Varbitsa Street

4th Floor

1504 Sofia

Bulgaria

: Michael Kapoustin

10-

,

: 01.04.2005 .

Dear Mr. Petrov,

I provide for your records the following Complaint filed with the Prosecutors General

for the Republic of Bulgaria and I do so notwithstanding the fact I have received no

reply to anyone of my letters to you.

Again please accept this letter as once more a formal request for the Bulgarian HelsinkiCommittee to come to the assistance of me and the other foreign nationals imprisoned

at the Sofia Central Penitentiary.

I also provide you with a copy of my cover letter to the President of the Republic of

Bulgaria. Patiently waiting for a reply I remain,

Respectfully,

Michael Kapoustin


50/116

:

. "" 2,

: Vice President for the Republic

General Angel Marin

Sofia Bulgaria

: Michael Kapoustin

10-

,

: 01.04.2005 .

,

I submit a copy to you of the following Complaint to the Prosecutors General and

youre your good offices do what they can to help me and the other foreign citizens

have our complaints heard and taken seriously.

Please accept my apologies for repeatedly turning to the Office of the President for this

Republic and his Vice President. However, you are both honorable men who appear

willing to listen and act silently to have the complaints of those less fortunate in society

at least investigated.

As for officials at the Ministry for Justice, particularly the Main Directorate for the

Execution of Punishments Sofia, their delays, ambiguous replies and inaction to

complaints only demonstrates a greater desire to defend the long standing status quo of

discrimination and official malfeasances as acceptable policy and practice at the Sofia

Prison. Little interest is demonstrated by official at Main Directorate for the Execution

of Punishments in seeing that Bulgarian national education, labor and human rights

legislation is applied equally and fairly to foreign and Bulgarian prisoners alike.


51/116

The Main Directorate for the Execution of Punishments Sofia and senior officials at the

Sofia Prison have forgotten that prisoners are still human beings and in time future

members of society. Mr. President, the Sofia prison changes men but not in the waythat Bulgarian law or humanity intended.

Therefore, I request the assistance of the President in whatever way possible in helping

to secure a formal and unbiased investigation of my complaints and help to end

practices at the Sofia Prison that exist in open violation of Bulgarian national education,

labor and human rights legislation and international undertakings. I can only hope the

President and the Vice President take my complaints seriously,

Respectfully,

Michael Kapoustin


52/116

:

: For the Republic of Bulgaria

The President

The Vice PresidentThe Minister for Foreign Affairs

For Canada

Minister for Foreign Affairs

Ottawa, Canada


Mr. Stanimir Petrov

7 Varbitsa Street

4th Floor

1504 SofiaBulgaria

Bulgarian Advocates for Human

Rights

. 49. 3

, 1000

: Michael Kapoustin

10-

,

: 28.3.2005 .

,

On 18.03.2005 two respected prosecutors commenced an inspection of the facilities at

Central Sofia Penitentiary and conducted interviews with inmates. My understanding

was that they were to visit all the Groups at the Central Sofia Prison and to determine

from that visit the living conditions and complaints of the inmates. A report later to be

submitted to the Prosecutors General and Council of Ministers. An inspection and

interviews of inmates from the 13th Group of Foreign Prisoners did take place. But I

and the other inmates of the 10th Group were denied such a possibility.


53/116

Proceeding on the above, I wish to file a formal complaint and request that the

Prosecutors General have these gentlemen visit the one group they apparently

overlooked during their visit on 18.03.2005, id est the 10th Group at Central Sofia

Penitentiary of Foreign Prisoners.

I believe this oversight to be inconsistent with the legitimate objectives of their visitand acted to deny me and other foreign inmates here in the 10th Group a chance to

present our grounded complaints of there being policies and practice at the Sofia prison

that are in direct violation of Article 15 of the Law on Execution of Punishments and

Article 70 section 1 of the CC when these laws are read with Article 15 section 2 and 4

of the Regulations for Application of the Law on the Execution of Punishments in

conjunction with the protections afforded us by Article 6 sect. 2 of the Constitution and

the national law according to Article 4 of the Law of Protection Against

Discrimination.

The CC makes it a crime for a prison official to consciously do psychological harm to

an inmate by intentionally acting to deny or attempting to directly or indirectly obstructan inmates otherwise legitimate legal right to equality of treatment in housing and

work as required under Bulgarian national law or his equal right to access a Bulgarian

criminal court of law under the same conditions as other inmates regardless of the

inmates nationality, his property or social status.

Furthermore according to Article 282 of the CC for a prison official to refuse his duty,

leges scriptae. to the written law is a serious offence and punishable by imprisonment

id est the law requires (prison) officials to provide in writing their legal or factual

motives for each occasion of denying to an inmate what is otherwise his certain legal

right or opportunity as provided for in legislated law (the CC) and is a right or

opportunity available to an inmate except in the most extraordinary of circumstances.

For an official to by inaction fail to observe his duty to the law or refuses to observe

that duty solely upon the Unwritten Order of a superior to not observe a particular

law is a criminal infraction of law and that falls squarely within the jurisdiction of the

Prosecutors Office.

I respectfully remind the Prosecutors General of the following. That as much as it is the

duty of the Prosecutors Office to convict alleged felons, once having done so it is

equally the duty and a greater obligation to the law for the Prosecutors Office to protect

the rights of all convicts persons that are not restricted by virtue of their criminal

sentence or another legislative act. There are no legislative acts that make distinctionsaccording to nationality, property or social status in the application of national laws.

However, there are practices and policies at the Central Sofia Prison that do in writing

or by oral directive openly and with contempt and impunity for the legislated Bulgarian

national laws and with impunity for the Constitutional requirements of equality make

distinctions according to an inmates nationality and his or his familys property or

public status.


54/116

The Prosecutors General for the Republic of Bulgaria is obliged to investigate all such

complaints and were well ground to act immediately stop all such unlawful practices

and to punish those officials who are responsible.

I have done my part as a conscientious member of society to make the Prosecutor

General and other officials and leaders aware that such infractions of the national lawdo exist at the Central Sofia Prison. It is for the Prosecutors General to act and do so

with haste to end these abuses.

Clearly these two fine prosecutors visiting the prison are in a position to make such an

investigation and determine if there are legal or factual grounds for a further enquiry

into any complaints.

,

: 28.3.2005 .


55/116

820 g 1 of

820

,01/27/2005

-

,:

:

:

. 7380/2004.

, ,

. 1 , , , , (. . -, . 15 1996 ., ., . 2 1997 ., ., . 20 1998 ., ; -04-277 04.10.2002 . , ,, . 15, . 1 (); : . 6196 6197 () 26.02.2003 . 26.06.2003 .; . 2191/2003 .

(); . 17/2004 . 68/2004 . (), . , . , , , , .

1 167 28.08.1992 ., ., , . 71 1.09.1992 . .

.23


56/116

820 g 2 f

//.

-04-277/04.10.2002 . 15, . 1 // ,

, , -, , , , . , , . , . , , , . 5,.1 .

, , - . 27.11.2003 , . 2191/1003 , 12 . 29.03.2004 , .17/2004 - 27.11.2003 . 2191/2003 . 25.05.2004, . 68/2004 , 29.03.2004 .. 17/2004 , .

, 19 - - . 213 218 . . , . ,_.

21.01.2004 , 12 ,

" " , . 72 . . . 73 , " , ,, ,, ".


57/116

820 gf

, . , . . , -

:

, 12.09.2003 , .. 2191/2003 , .. 17/2004 .. 68/2004.

1 .

, -04-277 04.10.2002 . , , , .

21.01.2005 ,. 72 .

7 .

, : ://

://

//


58/116

:

:

. . . 7380/2004

: 820 -1/27/2005.

: 10-

,

,

,

16.02.2005. .

.

.

A.

, , , , . , 820 27.01.2005., . ,

, , ,.

, .

, , .


59/116

B.

820 27.01.2005., , , :

(1) , [ [] ], id est , , [,

.

,

.] , , ;

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,

.

.] 12 , ,.. 7380/2004, , ,

(3) [ (. 722 )

.

. 73

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, ".

,

.

,

.

.] , , inter alia[1] -04-277/04.10.2002, . 73 ], . 72, .2 12 . 12 , , .


60/116

C.

No. 820/2005

820/05 :

(1) [ [] ] , . 63, .1, . ;

(2) , 12- , , ,

. 7380/2004 , id est,

, 12- , , ,

, ;

(3) , , () , , 12-. 12- , . 7380/2004 (1) , ,

(2) , .

D.

:


61/116

(1) , , . ,

, , , ?

,

. 21, .1 , 5-

ex officio,

. .

7380/2004. ,

, , .

5-, , , , , .

, 12 , , , .

, ,

, , , , , ,


62/116

, , , . . 7380/2004,

, id est, , , , , .

, , , , id est , [inter alio

[2] 12- ], ,

,.

Res ipsa loquitur[3], 12 , , , -04-277/04.10.2002 , , 12- ,

, prima facie[4] exofficio, , ,-04-277/04.10.2002 .

, 5-, , , , -04-277/04.10.2002 ,

, , , . 21 . 1 .


63/116

(2) , . 1 [. 21 ] 14-

, , 5-

, . , , . . 7380/2004, , inter alia , , , .

, , 5-

,12-, 5- , 12-. 72 . 2 , , . 21 . 2 ,.

, 12- . 21, . 2, . 72, . 2 .

expressio unius est exclusio alterius[5] [] . 12- [. 72, .2

] , [. 21, . 2

].


64/116

, 5-

, . 21, . 1 ex officio, ,

, , . 21,. 2 , interalio, 12-, , . 72, . 2 .

, , , , , , .

, , , -04-277/04.10.2002. . 15 , inter alio 12-, 4 - , , , ; 1 - ; 1 - ; 4 - , , , ; 2 - 5-. . 7380/2004.

(3) 5- , 12 . , , , , . , ,, .

(4) , , 5- 12-

, , ,.

(5) 5-

.


65/116

(6) , ., ,

. , , , prima facie

, . , , .

, .

, ad hoc . 63, . 1, . (. . 36/1979.,. . 124/1997.) [,

, ][6] , [ ] [ ] [ ] [

, . 5,.1

.. .

][7] . 5, . 1

?

, , , , [8]. 5 , , .


66/116

, , , , , . 219 .

, .

, , . 63 , [9] , res iudicata .

, . 63, .1, . , id est, , . , - , - , .

,

. 63, . 1, . , ., . , (a) , (2) , .

, .


67/116

. 63,

. 1, .

, de facto

,

- . , , ?

E. ,

(1) , , id est , inter alia -04-277/04.10.2002 . 15 ;

(2) , , , ;

(3) , , ,

100 , . , . 21 ., 5- ex officio, ,

, 12- , - , , , ; 1 ; 1 - ; 4 - , , , ; 2 - , . . . 7380/2004 , , . 21, . 2 ;


68/116

(4) , 5-

(1) ex officio . 21, . 1 ,

, . . 7380/2004; (2) .21 , id est, , , , . . 7380/2004, , ;(3). 21, . 2 12- , inter alio 4- - , , , ; 1 ; 1 - ; 4 - , , , ; 2 - ; (4) 12- inter alio 4- - , , , ; 1 ; 1 - ; 4 - , ,

, ; 2 - .

(5) 5-

,

",

,

.

, .

", . . 63, . 1,6. " , , ", , ?

" ", , , "

,? ,


69/116


70/116

:

:

. . . 7380/2004

: 820 -1/27/2005.

:

10-

,

,

,

7 .5 ,

,

820 - 1/27/2005..

, .

, , 16.02.2005.

I submit the following Private Appeal was originally submitted in the English

language on 16 February 2005 through the Sofia Prison. The present English text

has corrections and additions as submitted by me for Bulgarian language

translation by a recognized expert interpreter.

I now submit to the Court the final Bulgarian text with the corrected English

language document.

A. Preliminary Statement

As a foreign citizen deprived of his liberty, the Appellant is severely handicapped by the

judicial fact of his restricted ability to access his translator. It is therefore reasonable for

this Court to expect from the Appellant some deficiencies in his fully comprehending the

Bulgarian only text of the appealed Definition 820 from 01.27.2005. As a result, the

Appellant wishes in advance to forewarn the Court that lack of understanding the

Bulgarian Court is the reason why there may appear from time to time arguments in thisAppeal that may be unrelated to the actual reasons issued by the Court.

2005 02 14_7830 04_ SupAC 5th Dept_Appeal_ENG.doc


71/116

In such an eventuality the Appellant apologizes in advance to the Courts membership.

Also, because of the shortness of time, the Appellant reserves his right to file anaddendum to this Appeal and thereby to complete his arguments.

B. Appealed Parts

The Appellant appeals those parts of Definition 820 from 01.27.2005 where it is

determined by the Honorable Judges Mihailova, Ancheva and Kovacheva that;

(1) The Supreme Administrative Court finds it has no jurisdiction to review complaints

[ []

] against rulings and definitions issued by the reporting judge in civil cases id est

that the administrative rulings and definitions by Chairmen appointed by the Minsterfor Justice to administer the numerous departments of the Sofia City Court [

,

. ,

.] are part of

the procedural order of a claims process and the Administrative Court only judicially

competent to redress the lawfulness of administrative acts and not the judicial acts of the

civil courts;

(2) The Supreme Administrative Court finds the [

.

,

.

.] 12 other foreign citizens deprived of

liberty in Bulgaria who submitted Motions requesting to be admitted as interested

parties to present proceedings under administrative case 7380/2004 are not

interested third parties and their participation therefore is inadmissible, and

(3) The [ (. 722 )

.

. 73 ",

, ".

,

.

,

.

.] the procedure commenced by Kapoustin against the

Ministry for Justice and inter alia Order LC-04-277/04.10.2002 is one procedural

admissible under Article 73 of the same law [ Law of Protections against

Discrimination], and therefore Article 722 of the Law of Protections againstDiscrimination cannot and was wrongly relied on by Appellant and the other 12



72/116

Petitioners in the present case. Therefore the incorporation of 12 identical complaints

from other discriminated against imprisoned foreign citizens is procedurally

inadmissible at least according to the Honorable Judges Mihailova, Ancheva andKovacheva.

C. Appellants Grounds for Altering DEFINITION No. 820/2005

The appealed parts of Definition 820/05 require the Appellant redress the following

questions;

(1) The apparent lack of clarity as to the nature of his complaints against[ []

] the rulings and definitions issued by Chairman of the Sofia City Court as

considered by the law according to Article 631 item b of the CivCP; and

(2) The question of judicial economy, the legal status of 12 Petitioners and all otherforeign citizens deprived of liberty in Bulgaria as interested parties and their

procedural right to participate as interested third parties in an administrative case

where by the Decision of the Supreme Administrative Court their future rights

and obligations under law are to be affected. The present administrative case

7380/2004 is filed by Kapoustin as a member of what is a distinct social group

within Bulgaria society id estall foreign citizens deprived of their liberty and

incarcerated in Bulgaria by order of a Bulgarian criminal court and whose

legal rights and obligation in Bulgaria are affected by what are alleged by

Kapoustin in his original complaint and by the 12 Petitioners to be administrativeacts, polices and practices of the Minister for Justice that by their wording and in

their intent and practice exist in contravention of basic Bulgarian law and are

negatively discriminating against all the members of this distinct social group;

and

(3) That by applying the same logic as that of the Supreme Administrative Court 5thSection it would appear that each of the foreign citizens having filed the 12

individual Motions under this case should have had their individual requests

considered separately and not collectively by the Supreme Administrative Court

5th Section. The Court required to issue a separate DEFINITION and separate

notification to each of the 12 Petitioners whos Motion to participate in admin.Case 7380/2004 has have been rejected as inadmissible on the procedural and

factual grounds that (1) the wrong procedure for allowing for their participation

has been relied on by them, and (2) that they are not interested parties in the

administrative case as filed by one of their members, Kapoustin.

D. The Shortness of time and different levels of complexity require

the Appellant approach each of his complaints by order of their

simplicity and to submit his complaints in summary as follows.



73/116

(1) The question to be determined under the present proceedings is one of law.Do the official administrative policies and practices of discrimination by Order

of the Ministry for Justice and as practiced by the Sofia Prison Administrationviolate Bulgarias basic law and other human right legislation against all forms

of direct and indirect discrimination according to nationality, property or social

status of a particular group or individual?

Persons interested in the outcome of the case are considered by Article

211 Law for the Supreme Administrative Courtand it is the duty ex officio

for the Supreme Administrative Court 5th

Section to notify all such persons

whose legal right and obligations are to be directly or indirectly affected by

the outcome of administrative case 7380/2004. The original complaint of

Kapoustin did not allege that he is the only foreign prisoner deprived of liberty

who is affected by the complained of administrative act of the Minster forJustice.

The Supreme Administrative Court 5th

Section therefore erred in law and

was also unreasonable when it concluded from the character of the Kapoustin

complaint and the facts that other the foreign citizens deprived of liberty in

Bulgaria are not discriminated against and do not therefore have the legal status

of interested party to the administrative complaint as filed by Kapoustin

against the Ministry for Justice.

This conclusion is wrong first because the other foreign citizens and 12

Petitioners under this case have also alleged the same discrimination against theMinister for Justice and are complaining that the same official policies and

practices of direct and indirect discrimination are being unlawful and are

unlawfully derogating from the legal rights under Bulgarian law of all foreign

citizens deprived of liberty in Bulgaria.

THEREFORE IN THAT THE ORIGINAL COMPLAINT TO THE SUPREME

ADMINISTRATIVE COURT WAS NOT AGAINST AN INDIVIDUAL

ADMINISTRATIVE ACT AFFECTING ONLY THE ORIGINAL

COMPLAINANT AND FOREIGN CITIZEN DEPRIVED OF LIBERTY

KAPOUSTIN AND IN THE FACT THAT ALL FOREIGN CITIZENS

DEPRIVED OF LIBERTY IN BULGARIA ARE AFFECTED IN THE SAME

WAY AS KAPOUSTIN BY THE DISCRIMINATION ALLEGED BY HIM

AND IN THE FACT THAT AS A RESULT OF THIS THE LEGAL RIGHTS

OF ALL FOREIGN CITIZENS DEPRIVED OF LIBERTY IN BULGARIA

WILL BE DIRECTLY AFFECTED BY THE OUTCOME OF

ADMINISTRATIVE CASE 7380/2004 ARE FACTS THAT MUST LEAD A

REASONABLE AND FAIR OBSERVER TO THE SAME CONCLUSION idest THAT ALL FOREIGN CITIZENS DEPRIVED OF LIBERTY INBULGARIA ARE AFFECTED AND AS A RESULT MUST BE

RECOGNIZED AS HAVING THE LEGAL STATUS OF PERSONS

INTERESTED IN AND AFFECTED BY THE COMPLAINT AND ANYJUDGMENTS ISSUED BY THE COURT.



74/116

Proceeding from a reasonable assessment of the facts, the Appellant must

respectfully submit to this Court that the conclusion by the Honorable Judges

Mihailova, Ancheva and Kovacheva id est that the other foreign citizensdeprived of liberty in Bulgaria [inter alio the 12 Individual Petitioners named]

are not parties whose legal rights and interests will be affected by the outcome ofthe present case is a legally wrong one and presents to this court a clear

mistake of law.

The fact Res ipsa loquiturthat the other 12 Petitioners under this case are

foreign citizens, are deprived of their liberty by a criminal court, are directly

suffering the complained of discriminations and are also the subject of Minister

for Justice Order LC-04-277/04.10.2002 are facts that speak for themselves

and from which no other inference is reasonably possible except that the 12

Petitioners and all other foreign citizens deprived of liberty have sufficientprimafacie cause for the Supreme Administrative Court ex officio to find them to be

parties of interest who are suffering the same discrimination within the

Bulgarian prison system as is precipitated from among other things Ministry for

Justice Order LC-04-277/04.10.2002.

As a result, the correct finding of the SAdmC 5th

Section should be that all

incarcerated foreign citizens in Bulgaria as are alleged to be suffering

discrimination the result of among other things Ministry for Justice Order

LC-04-277/04.10.2004 must be given the legal status of persons are interested

in the outcome of the case, not indicated in the claim or contestation as

considered byArticle 211of The Law for the Supreme Administrative Court.

(2) FURTHERMORE, the bodies and the persons under para 1 [Article 21 ofthe Law for the Supreme Administrative Court] can enter the proceedings

within 14 days from receipt of the notification, therefore the Supreme

Administrative Court 5th Section had a duty to the law to allow the participation

in the present case of any foreign person deprived of liberty in Bulgaria. Such

persons are clearly to be affected by any Judgment and findings by the Supreme

Administrative Court issued under admin. case 7380/2004 when it considers a

question of law inter alia are the discriminatory administrative policies and practices of Minister for Justice as imposed on foreign citizens in Bulgarias

prisons ones that violate the Bulgarias constitution and other national laws and

international treaties?

Therefore the Appellant respectfully submits that the Supreme

Administrative Court 5th

Section did again erred in law when finding the

Motions of the 12 Petitioners and Kapoustin to be inadmissible also on account

of what the Supreme Administrative Court 5th Section considers to be the

procedural error of the 12 Petitioners and the Appellant Kapoustin relying on

Article 722 of the Law of Protections against Discrimination to secure

participation in the case and not on Article 212 of the Law for the Supreme

Administrative Court.



75/116

There is no need for the Appellant to discuss the question if the 12 Petitioners

under this case being excluded from participating underArticle 212 of the Law

for the Supreme Administrative Court solely on account of their including areference toArticle 722 of the Law of Protections against Discrimination.

This legal question is moot expressio unius est exclusio alterius1 since both laws

[the Law of Protections against Discrimination and the Law for the Supreme

Administrative Court] settle theprocedural issue of third party participation in

the same way. The expression or reliance by the 12 Petitioners and

Kapoustin on one law [Article 722 Law of Protections against

Discrimination] and its exclusion due to procedural inadmissibility according to

the Honorable Judges Mihailova, Ancheva and Kovacheva does not have the

legal affect of excluding the Petitioners from their legal procedural right of

participation under the other law [Article 212 of the Law for the SupremeAdministrative Court].

Supreme Administrative Court 5th

Sectionthe Honorable Judges Mihailova,

Ancheva and Kovacheva knew that according to Article 211 of the Law for

the Supreme Administrative Court the court must act ex officio to determine

who are the unidentified parties interested and whose legal rights and obligations

are to be affected by the outcome of an administrative case and also knew that

according to Article 212 of the same law the Court must grant to the parties of

interest inter alio the 12 other Petitioners the same procedural right to participate

in the case as is allowed underArticle 722 of the Law of Protections against

Discrimination.

Therefore, the requests for the participation of the other parties interested in the

outcome of the case are at least procedurally admissible, notwithstanding the fact

of the Petitioners having possibly cited the wrong law when filing their Motions

for participation in the case.

As a result, all foreign citizens belonging to the group affected by Minister for

Justice Order LC-04

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2005.08.09_DISCRIMINATION History of Complaints Helsinki Committee

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