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The Minister for Foreign Affairs

Serbia and Montenegro

Belgrade, Serbia

Care of

EMBASSY OF SERBIA AND MONTENEGRO

17, Blackburn Avenue

Ottawa Ontario KIN 8A2 CANADAAPPLICATION

FOR ASSISTANCE

IN A COLLECTIVE COMPLAINTunder 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

theEuropean Social Charterand 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 Bulgarias 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 ofEurope 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

EuropeCommittee for Social Rightto ascertain if such a refusal is consistent with the Councils Charterand other

international laws.

The posited question is the following. Does the Council of Europe endorse the Bulgarian governments practice of an

Offenders nationality, property and public status creating legal rights different from and less than those other

offenders who citizens of Bulgaria when such rights are governed by the same national laws and international treaties

and notwithstanding that neither Bulgarian national law or international treaty makes such distinction when

determining the positive obligations and negatives restrictions agreed to by Member States for their guaranteeing

equal individual rights?

From: Nikolai Vasich

Citizen of Serbia and MontenegroPrepared by: Michael Kapoustin

Citizen of Canada

10th Prisoners Group

Sofia Central PenitentiarySofia Bulgaria


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The Minister for Foreign Affairs

Serbia and Montenegro

Belgrade

Tuesday, August 9, 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 Montenegrois 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 ofSerbia and Montenegro is petitioned to assist Mr. Nikolai Vasich a

citizen of Serbia and Montenegro and to contact on behalf ofVasich aNon-government Organization (NGO) for the submission of a Collective

Complaint before theEuropean Committee of Social Rightsaccording

to a Rule 19of theRules 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


Sofia Central Penitentiary

Sofia Bulgaria


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Table of Contents

Request to the Minister for Foreign Affairs................. ........................................................... . 5

Admissibility Criteria before the Committee for Social Rights.................................... ........... 5The Republic of Bulgaria - Subject to the Social Charter ...................................................... . 5Procedure The Need for a Sponsor ....................................................... ............................... 5Policy, Law and Practice casus foederis of the Complaint .................................................. 6

Confirmation of the Discriminatory Criteria........................................................................... 7By The Republic of Bulgaria........................................ ........................................................... . 7The Bulgarian Helsinki Committee........................................................... ............................... 8

Form of Derogation ........................................................ ........................................................... . 8State Respondents Admissions and Arguments......... .......................................................... 10

The Ministry for Justice ......................................................... ................................................ 10 No Factual Dispute ........................................................... ................................................ 10No Positive Obligation for Non-Discrimination and No Negative Restriction against

Discrimination............................................................................ ....................................... 10Prison Committees are Secret Tribunals affecting Legal Rights...... ............................. 11Prison Parole Committees ex lege are Doubling the Prison Term for Foreign Offenders 13Administrative Increase in the Effective Prison Terms of Foreign Offenders.................. 13Foreign Governments Mislead by the Bulgarian Ministry for Justice.............................. 15

Bulgarian Discrimination is Systematic and Systemic....................................................... ... 15Prevailing Bulgaria law makes a mockery of the Ministry for Justice................................ 16Prosecutors General for the Republic of Bulgaria .................................................... ......... 20

No Factual Dispute ........................................................... ................................................ 20Nationality, Property and Public Status Determines Parole................ .............................. 20

Applicant Reasons .......................................................... .......................................................... 22On the Question of the Transfer of Offenders.................................................... ................... 22

All the Applicants have, at one time or another, petitioned the Bulgarian Prosecutors

General for transfer under the Convention. ................................................... ................... 23No alternate Venue or Judicial Remedy.................................................... ............................. 25Government Ordinances and Law against Collective Complaints........................................ 25Exhaustion of Individual Complaints Procedures ........................................................ ......... 25Bulgarian Administrative Courts Refuse having Jurisdiction ............................................... 26 Final Remedy..................................................... ........................................................... ......... 27

Confirmation of the Discriminatory Criteria......................................................................... 27Conclusions ....................................................... ........................................................... ......... 27

Order for Review of the Applicants Concerns............. .......................................................... 28Request before the Committee .......................................................... ...................................... 32


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Request to the Minister for Foreign Affairs

Mr. Nikolai Vasich petitions the Minister for Foreign Affairs for Serbia and

Montenegro to sponsor a Collective Complaint on behalf of himself as a

citizen of Serbia and Montenegro, and other foreign citizens currently serving

criminal sentences in the Republic of Bulgaria, and hereinafter called the

[foreign] Offenders.

The Minister for Foreign Affairs for the Government of Serbia and

Montenegro is petitioned to consider submitting for the Applicants a

Collective Complaint against the Republic of Bulgaria before the Council of

Europe Committee of Social Rights (hereinafter the Committee) and the

European Unions 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

Charterand 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 Charterand other internatioanl human rights

instruments.

Procedure The Need for a Sponsor

According to Rule 19of theRules of Procedure of the European Committee

of Social Rights PART VII of the Collective Complaints Procedure, all

collective complaints must be delivered to the Secretary to the Committee

acting on behalf of the Secretary General of the Council of Europe.


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Each Collective Complaintmust 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 Protocolto theEuropean Social Charter(hereinafter theCharter seeRule 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 ofArticle 1 b) and Article 3 of the Protocol to

the Charter(the Protocol). TheNGO 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 (NGOs) who are

entitled to lodge Collective Complaints. The NGO must have the competence

within the meaning of Article 3 of the Protocolto 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 protectionsotherwise 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 Offenders legal rights and obligations according to nationality,

property status and public status.


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Bulgarias Ministry for Justice persists in his defence of discrimination as

policies and practice not inconsistent with Bulgarias agreements with the

Council of Europe, including the Charters 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 bytheBulgarian 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 Article39a 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 issuedby the Prosecutors General forthe 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 Offenders nationality, property and public status;

4. POLICY AND PRACTICE issued by the Ministry for Justice - MainDirectorate 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 ofPunishments 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].

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


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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 toissue unwritten decisions in an area of criminal law that otherwise

appears to be exclusively the jurisdiction of the criminal courts

according toArt. 70 of the Bulgarian Criminal Code;

5. POLICY AND PRACTICE issued by the Ministry for Justice - MainDirectorate 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 Offenders nationality, propertyand public status;

The abovecitedexist 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.

Firstfrom the application, legal interpretation and practice surrounding what is

a cabinet ministers [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


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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 Constitutions non-discriminationprovision;

Secondthe application, legal interpretation and practice surrounding a national

administrative law [ Law on Foreigners on the Territory of Bulgaria] that

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 Bulgarias

Prosecutors General theliberty 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 familys property and public status when read with the

immediately cited law. The liberty to leave Bulgaria and right to return homeare rescindedsine 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 estthe 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 abovefirstand secondcauses. 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 Bulgarias national courts to excuse suchmisconducts 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 abovesecondcause 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 forthe transfer of a foreign Offender. According to written reasons of the

Prosecutors General for the Republic of Bulgaria, it is the property and public

status of a foreign Offender in Bulgaria [and his family abroad] that will

determine the obligation for the Government of Bulgaria observing treaty bona

fides under the Convention. However, when requesting the repatriation to a

Bulgarian prison of Bulgarian citizens the Prosecutors General for the Republic

of Bulgaria fails to impose the same property or public status criteria on

Bulgarian citizens as he does on citizens incarcerated in Bulgaria of other

Contracting States to the Convention.


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State Respondents Admissions and Arguments

The Ministry for Justice

No Factual Dispute

When replying to the Applicants complaints, the Bulgarian Minister for

Justice has admitted to the existence of a Government of Bulgaria policy

and practice of affecting only the rights and obligations of foreign

Offenders.

That rights and obligations affected by the nationality, property or public

status of an Offender are in the areas of his equal access to certain articles of

Bulgarian national law, judicial procedures and international treaties.

The Bulgarian Minister for Justice confirms in his letters that nationality,

property and public status of an Offender will determine his legal rights and

obligations and also the obligations of the Bulgarian States 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.

Bulgarias 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

BulgarianLaw 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 forJustice as to why it is necessary for the Government of Bulgaria to impose a

policy ofsegregation and isolation according to nationality.

No Positive Obligation for Non-Discrimination and No Negative

Restriction against Discrimination

According to the letter of the Bulgarian Deputy Minister for Justice, the

Applicants complaints against its policy of discrimination are without legal

merit, the complained of discrimination being lawful.


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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 ascited previously.

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 Offenders 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 Bulgarias 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 foreignOffender 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.


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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.

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

Secondbecause 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 Offenders 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. 701 CC].

Therefore, conclusions by the Ministry for Justice and Sofia DistrictProsecutors 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 directdiscriminations 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;


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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;


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

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;


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];


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 11

th

, 2004 DECISION 28730/04and 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.


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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 prosecutors office shall be present and their

identities intended to be public.

And according toArticle 4151 abstract (2) of the Bulgarian Criminal Code of

Procedure2 the prison Committee formed underArticle 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.

2Art. 415. (1) Proposals for conditional release under Articles 70 and 71 of the

Penal Code may make:

1. The regional prosecutor, respectively the military prosecutor, in the place of

execution of the punishment;

2. The Committee under Art. 17 of the Execution of Punishments Act.


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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 oftheir 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 ofArticle 701 CCid est

complete half or more of his criminal sentence.

Furthermore, according to ENACTMENT 7 from 27.06.1975 Of The

Plenum Of The [Bulgarian] Supreme Court Criminal Division

( 7 27. Vi. 1975 . )3 on the

occurrence of an Offender formally satisfying all the requirements ofArticle

701 CC, the Committee id estemployees of the Ministry of Justice Main

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Directorate for the Execution of Punishments Sofia Central Penitentiary are

obligated to submit the Offenders 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 tribunals to the Applicant Kapoustin or to

representatives of the other foreign embassies whose citizens have rights

affected by this Committee.

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

Offenders imprisonment. Therefore, according to law, the Committees formed

according toArt. 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 membersand the district prosecutor succeed in altering criminal sentenced indirectly,

first by maintaining the secrecy of the Committees members; second by

Committee sessions being conducted under rules of secrecy; thirdby 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 estonly decisions positively affecting the

legal rights of an Offender can be subjected to judicial control [Art. 415 and the

following CCP].


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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].

Prosecutors General for the Republic of Bulgaria

No Factual Dispute

The Prosecutors General for the Republic of Bulgaria has confirmed inwriting the Bulgaria Governments 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 7014

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 legalright to a judicial review under Article 701 of the Bulgarian Criminal

Code is first to be determined by the Offenders nationality, and then his

property and public status.

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.


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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 othersimilar 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 ofArticle

701 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

between the reforming influence of the penalty fine and the criteria for

a [foreign] Offenders satisfying the rehabilitation criteria ofArticle 701

CCto 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 [,

] 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 Bulgariathe 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 Bulgarias 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 Bulgarias 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.


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Among other things, that a 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 andprove the Offenders 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.

Applicant Reasons

What flows naturally from this reasoning of Bulgarias 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 familywithholding information on their property, income or other resources.

In fact the reverse may be said to be true, that Bulgarias Prosecutors

General refuses to accept official [foreign court] documents establishing the

Offenders 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 Offenders property status to determine their transfer from Bulgaria under

the European Convention on the Transfer of Sentenced Person, hereinafter

the Convention.


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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 discriminationaccording 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 Offenders 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 inadequateproperty, cash or personal income to allow the settlement of state imposed

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] Offenders 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 knowsor 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 theRepublic 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 Bulgarias Prosecutors General.


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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 43of the Bulgarian Law for Foreigners in the Republic of Bulgaria] the

Bulgarian State collects its receivables before the individual debtor leaves

the countrys [Bulgarian] territory and in this sense [Bulgaria] does not

delegate legal authority for the other [Administering] state to collect its

receivable (

).

The only possible conclusion to be reached from the above is that the

Prosecutors General for the Republic of Bulgaria will only observeBulgarias 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

by Bulgarias Prosecutors General id estsufficient 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 Bulgarias

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 theends 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 foreignOffender secure persecution observance of a procedure of Bulgarian national

law or of an international treaty.


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No alternate Venue or Judicial Remedy

Government Ordinances and Law against CollectiveComplaints

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

Bulgarias 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 theirfamilies 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].

5 No one is bound by what is impossible


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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 Bulgarias 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 lettersfrom 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 forJustice and the unlegislated practices inter alia the decisions of the Sofia

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 courtsrefusing 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.


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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 Offenders

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 Bulgarias 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

ConclusionsThe 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

is inconsistent with Article 16 of the Charter when read with the non-

discrimination clause of the Charterpreamble.

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 againstDiscrimination].

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.


28/32

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 loquitur

6

, and all the proof the Applicants require forestablishing their allegations of the Government of Bulgaria evading its

responsibility to the Charterand Article 37 of the Statute of the Council of

Europe and ignores completely the negative restrictions enshrined against

discrimination inArticle 14of theEuropean 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

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 financiallyhostage 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 Republicof 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 criminalcourt 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

6 (law) thing speaks for itself7 Article 3

Every member of the Council of Europe must accept the principles of the rule of law

and of the enjoyment by all persons within its jurisdiction of human rights and

fundamental freedoms, and collaborate sincerely and effectively in the realization of

the aim of the Council as specified in Chapter


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according to a [foreign] Offenders individual ability, the length of his

sentence and nature of his conviction and; theirright of equal and fair

access to institutional and other facilities for education, recreationand self-improvement;

(2) Protection from Exclusion the Applicants Complaint alleges theRepublic of Bulgarian as failing to observe the Negative Restriction

against inter alia relying on the criteria of an [foreign] Offenders

nationality, the property status of the [foreign] Offenders family and

any prevailing public or political enmity towards an individual [foreign]

Offender as a reason for that [foreign] Offenders exclusion from the

opportunities, legal rights and social protections found in Bulgarias

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 Bulgarias 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 equalopportunity employment, educational and recreation facilities, and to be

recognized for their good behaviour.

(3) Protection from Exclusion - the Applicants Complaint alleges theRepublic 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 Bulgarias 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.

Bulgarias 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.


30/32

(4) Movement of Persons Positive Obligation id est that the Republicof Bulgaria is not observing its positive obligation to guarantee to

citizens of Serbia and Montenegro other European States and Canadatheir 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 citizens liberty solely on account of anyuncollectible civil or administrative money debts they may have to the

State or citizens of Bulgaria.

(5) Movement of Persons - Deprivation of Liberty Negative Restrictionid 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 Obligationid estthat the Republic ofBulgaria is not observing its positive obligation to guarantee to

citizens of Serbia and Montenegro, other European States and Canada

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 toprevent 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

Bulgarias 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.


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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 citizensor the State are being routinely denied access to the Convention and

their requests for transfer;

(7) Right of the Family Negative Restriction id estthat the Republic ofBulgaria 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 Offenders right to unsupervised home leave

or a judicial review of that Offenders possible parole. Bulgarias

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

whose behaviour is formally consistent with the requirements ofArticle

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 Offenders nationality or the

property status of the Offenders family.

Furthermore, Bulgarian human rights legislation [theLaw 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.


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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 theparoling 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 Offenders 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

European and the European Social Charterfor 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 tosocial, 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.

Nikolai Vasich

Citizen of Serbia and Montenegro

Michael Kapoustin

Citizen of Canada


Sofia Central Penitentiary

Sofia Bulgaria

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