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MKapoustin Page 1 of 25 March 14, 2006

To: Republic of BulgariaSupreme Administrative Court

Fifth SectionChairman

Ref: Administrative Case 8828/2005

Trial: May 2nd 2006 at 14:30 hrs.

Respondent: Republic of Bulgaria .

, 1000

Pleadings

To The Chairman of the Court,

. 4 5 8828/2005. .. 1118 ,

. 200 . 1, , . .. . 17/2004..Opening Statement

For the record, the Applicant would underscore to this Court not to undervalue the complexityof the Applicants complaints and the seriousness of his allegations.

Furthermore, the Court is request not to limit its judicial enquiry only to the exact words foundin the provisions of item 4 of LC 4-277/02 and their application by the Respondent to thenarrow question of direct discrimination in spheres of prison housing or employment whenapplied to prisoners who are not citizens of the Republic of Bulgaria. To so severely limit this

judicial enquiry would ignoring the overwhelming evidence of how the Respondents ordersto isolate from all others and words that of Respondent officials civil legal and human rightsabuses that have resulted from the incitement to discrimination caused by item 4 of LC 4-277/02 . Sofia prison officials a result of the Respondents use of two phrases. The first, thatthose not having Bulgarian nationality are, to be isolated from all others and the second,that this be a further injustice and would

. only examine the This court is being asked to unravel 17 years of published and unpublishedadministrative acts issued by officials of the Respondent and unlawfully abusing thefundamental civil and human rights of hundreds of foreign citizens imprisoned in Bulgarias

prisons since 1991. There is a real need for a full hearing of the facts, and that no matter howlong this proceeding may take.

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Furthermore, the Court is requested to consider the Applicants complaints and argumentswithin the factual context of his having experienced more than 2 years of a brutal isolation in

detention and the additional 9 years of the harsh conditions to be found at the Sofia CentralPrison. The negative human and social consequences of such a life, the psychological affectsof isolation at a maximum security penitentiary facility for nearly 11 years and the resultingseparation from family and society are also not to be underestimated.

Also, when examining the facts and collected evidence the members of this Court arerequested to do so within the additional context of the now notoriously public fact of howdetermined Sofia prison officials can be when undermining the democratic principles of

public transparency and the judicial accountability. The Court asked to recall the letters issued by the Respondents former Minister for Justice Anton Stankov Respondent officials in November and Deputy Minister Margarit Ganev in December 2004 and the August letter

Deputy Director for the Main Directorate for the Execution of Punishments PlamenKodstadinov and November 2005 letter of Director for the Ministry for Justice Directorate for International Legal Aid Ms. Vassilena Malev. Each of them defending the Sofia prison

practice of official secrecy and incidents, the criminal indictments and recent dismissals that itis well documented fact that Sofia prison official historically refuse to explain their administrative acts to foreign prisoners. And if issuing a written administrative act or explanation, the written motives of prison officials are so vague or the facts so convoluted asto be incomprehensible to the reader. This particularly true when the party negatively affected

by the administrative act is a foreign citizen who can neither reads, writes or speaks Bulgaria.

The Court is also The withholding of information and official documents from prisoners by prison officials Concealment of official administrative documents, and lack of officialaccountability has been historically supported by officials of the Respondent, It now a matter of record that senior Sofia prison officials and certain official at the Main Directorate for theExecution of Punishments and formerly employed at the Sofia prison did actively engage inthe concealment of how inhumanely they administered criminal sentences. Historically,Officials at the Sofia prison refuse to be bound by Bulgarias national laws. A fact known for years to those men imprisoned at the Central Prison having to suffer these abuses and onlyuntil recently a fact denied for decades by successive prior Bulgarian Ministers for Justice.

Now allegations of official malfeasances such as corruption, abuse of power and brutality by prison officials are repeated on national and international television and the press. no longer the excusive province of only those imprisoned men suffering these violations of Bulgarianlaw and international treaties.

imprisoned at the hands of men and women who believe they are above law. at the SofiaCentral Prison, but . Allegations of and the national law by Sofia prison officials now provesto be the rule and not the exception. A

Furthermore,

The first and foremost among the reasons for the Applicants appearing before thisCourt is to have the Court it end a 17 year or more policy of unlawful discrimination

imposed and maintained by past Ministers for Justice of Republic of Bulgaria and used byofficials of the Sofia Central Prison to demean, demoralize, dehumanize, intimidate and even

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coerce money from foreign citizens. Officials at the Sofia prison have been conditioned andtrained by the Respondent to refuse to anyone who is not a Bulgarian national or citizen his

right to equal opportunity rights and protections under the Law for the Execution of Punishment . These same Sofia prison officials are responsible for forcing non-Bulgariancitizens to sign and accept legal documents in the Bulgarian language, a language they cannot

possibly understand when first entering prison. Punishments are imposed and the confiscatingof a foreign citizens property occurs without Sofia prison official or officials of therespondent once attempting to explain in a language other than Bulgaria what the legal and

property consequences of these administrative acts [punishments]. Instead Sofia prisonofficials abandon their responsibility and rely on Sofia prison inmates to explain to non-Bulgarian prison inmates their legal rights and obligations.

The second reason for the Applicants appearing before this Court is the desire to have

this Court imbue some transparency, accountability and judicial control into theactivities of a collective administrative body of the Sofia prison and upon prison officialsemployed by the Respondent . The Applicants objective is to bring to an end the unlawfuldiscriminations and other questionable administrative policies and practices of a Sofia prisoncollective administrative body organized under article 17 of the Law on the Execution of Punishments, hereinafter the COMMISSION. Individual voting member of thisCommission have demonstrated a complete disregard for the constitutional and other legallimitations imposed by their non-judicial role. Sofia prison Commission members openlyrefuse to observe exactly and without alteration the national laws of Bulgaria. Historical Sofia

prison officials have demonstrated a high degree of impunity towards any Bulgarian nationallaw that might limits their power over a person deprived of liberty or the judicial proceduresthat seek to make prison officials accountable for administrative actions or inactions injuringthe civil, legal or human rights of a prisoner.

The third and final reason for appearing before this Court is a result of Respondentofficials inter alia (1) refusing to admit that certain provisions of its administrativeorders directly contravene tangible legal provisions of the Constitution and Bulgariasinternational treaties and Law for the Execution of Punishments when applyingnational laws differently to non-Bulgarian prison inmates, and; (2) insisting that theadministrative acts of the Sofia prison and actions of its officials are not subject to eitherto the rules of public transparency or administrative judicial accountability orsupervision. The Respondent refuses to identify to prisoners or their families the name,official position and responsibility of a public official employed at the Sofia prison andinsodoing is intentionally obstructing justice solely to protect prison employees from possiblecivil prosecutions and personal liability for unlawful administrative acts. In several officialletters to the Applicant and the Embassy of Canada, officials of the Respondent have insistedthat the identities of administrative employees at the Sofia prison are protected byinternational treaties and Bulgaria secrecy laws. However, despite numerous demands theRespondent has been unable in subsequent letters to identify the laws or treaties cited by it.

It is as a result of the above that the Applicant has been left with no other recourseexcept to turn to the Supreme Administrative Court for the Republic of Bulgaria.

What will the Applicant Prove?

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During the course of this trial the Applicant will prove the policy and practice of Sofia prisonofficials of the Respondent openly demanding money in exchange for a non-Bulgarian

citizens possible conditional early release. And that those families of imprisoned foreigncitizens unable to secure the money demanded from them will discover to their great distressthat a father, husband or son will be required to serve the full term of his imprisonment at theSofia Central Prison. Their continued imposed beyond the minimum half sentence not thedecision of a criminal court of law but instead a decision issued by a Sofia prison official or bythe collective administrative body organized by several prison officials of the Respondent.

If given the opportunity by this Court, the Applicant will also prove that a former Minister for Justice failed or refused to adequately investigate or report to the office of the prosecutor thedocumental evidence of possible corruption among members of the collective administrative

body organized by several prison officials of the Respondent and involvement of justices of

the Sofia City Criminal court.

the and signals for corrutiotion. videnc a more uring prove to this the further evn mredisturbing policy and practice Even more disturbing is the fact that after having servedthe full term of his imprisonment a non-Bulgarian citizen can then expect to be forced tocontinue to remain in Bulgaria against his will and to endure an additional continuedimprisonment at the detention facilities of the Ministry for Interior for the Republic of Bulgaria. This later humiliation of a continued imprisonment the result of administrative law and an administrative act issued not by criminal court of law, butinstead

, for the securing of an unpaid civil or administrative debt, Bulgarian bailiffs or stateexecutors are able to continue the imprisonment of a foreign citizen long after he or shehas served the term of a criminal sentence.

Simply and bluntly put, the Republic of Bulgaria is the only European Union candidatestate whose officials finds it more convenient to rely on imprison and not internationaltreaties [Conventions on the transfer of.Hague] as the preferred coercive measure forthe collection of unpaid money obligations from non-Bulgaria citizens.

Second, men and woman who only

The Applicant repeats and re-alleges his original complaint in those parts complainingof unlawful Government of Bulgaria policies of direct and indirect discriminationaccording to nationality in the spheres of prison security, housing, supervised andunsupervised family contacts, employment and education opportunities and candidacyfor possible conditional early release and as is and continues to be unlawfully practicedby officials employed by the Respondent at the Sofia central prison and the MainDirectorate for the Execution of Punishments for the Republic of Bulgaria. Theseunlawful practices affecting the Applicant gainst both convicted and unconvicted

criminal offenders who are not citizens of Bulgaria a.

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The Applicant repeats and re-alleges his original complaint in that part alleging theunlawful use of psychological and physical coercion against non-Bulgarian citizens y

officials at the Sofia central prison employed by the Respondent and who in theircapacity as officials have

The Respondent Ministry for Justice for the Republic of Bulgaria bearing both legaland ethical liability for having permitted officials employed by it and

Amended complaint dated 14.03.2006 and in support of that complaint submits thefollowing pleadings.

For clarity and as an aid to this Court the Applicant provides the following tables of citations, contents and index;

Facts Not Open to Dispute

1.1. Not a Matter of Choice Property Status, Foreign Law and Prisons non-Bulgarian citizens and their governments are unable to secure transfers underthe Convention for the Transfer of Sentenced Persons

1.1.1.That the former Prosecutors General for the Republic of Bulgaria FILCHEV,after receiving his mandate in 1999, established a policy and practice wherebythe Supreme Cassation Prosecutors Office was instructed to refuse allapplications from non-Bulgarian prisoners requesting transfers under theConvention for the Transfer of Sentenced Persons if it was found by the

prosecutors office that the applicant and his family had a property status[money] insufficient to pay off his financial debts to the Bulgarian State or a

private Bulgarian citizens [see.

1.1.2.That the Supreme Cassation Prosecutors Office considers refusing a prisoner transfer request as [see above 1.1.1.] as a reasonable coercive measure for forcing non-Bulgarian citizens or their families to make a cash settlement of acontractual or administrative debt or fine owed to a Bulgarian citizen or theBulgarian State.

1.1.3.That the Supreme Cassation Prosecutors Office makes no attempt to determineif the property status of a non-Bulgarian offender or his immediate family issuch as would reasonably permit the making of a cash payment in settlement of a contractual or administrative debt or fine owed to a Bulgarian citizen or theBulgaria State and without causing undue hardship.

1.1.4.That the Prosecutors General for the Republic of Bulgaria makes no similar demand for a cash settlement of foreign debts when it concerns a Bulgariacitizen requesting a transfer to Bulgarian under the same convention[Convention for the Transfer of Sentenced Persons ], and that notwithstandingthat the Bulgarian prisoner has similar unpaid contractual or administrative debtor fines owed by them to a foreign citizen or state.

1.1.5.That the reverse is true, the Government of Bulgaria and Prosecutors Generalfor the Republic of Bulgaria have insisted before foreign governments that thetransfer of its citizens from foreign prisons cannot be conditional on their first

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making cash settlement of what are impossible sums [see the case of Bulgarianmedics in Libya and in force civil judgments of Libyan courts against Bulgarian

citizens and awarded to families of HIV infected Libyan children, Governmentof Libya demanding cash settlement before agreeing to transfer Bulgariancitizens or allowing them to return to Bulgaria].

1.1.6.That the former Prosecutors General for the Republic of Bulgaria FILCHEV,after receiving his mandate in 1999, also established a policy and practicewhereby the Prosecutors General would refuse a foreign governments requestfor transfer of its citizen [ Convention for the Transfer of Sentenced Persons ] if the criminal law of the requesting state and sentencing guidelines of its criminalcourts are according to the personal opinion of Bulgarias Prosecutors Generalincompatible with Bulgarian law [see ]

1.1.7.That furthermore, the former Prosecutors General for the Republic of BulgariaFILCHEV established a further policy and practice whereby BulgariasProsecutors General would refuse a foreign governments request for transfer of its citizen [ Convention for the Transfer of Sentenced Persons ] it in theProsecutors Generals personal opinion the prison system in the RequestingState and prison conditions are not as harsh as those found in Bulgaria [see also]

1.1.8.That as a result of the above, no transfer has been approved by BulgariasProsecutors General of a non-Bulgarian citizen convicted for crimes inBulgarian if the prisoner is a national of a western democracy like Canada or amember state of the European Union and as a consequence the criminal lawsand sentencing guidelines in the Requesting State because they are less severeare therefore incompatible with Bulgarian criminal law.

1.1.9.That as a result of the above, no transfer application is accepted by BulgariasSupreme Cassation Prosecutors Office freomGeneral of a non-Bulgarian citizenconvicted for crimes in Bulgarian if the prisoner less severe sentencing or prisonconditions and all non-Bulgarian citizens having a property preventing thesettlement so debts, are given no other alternative by the State of Bulgaria exceptto serve the full term of their imprisonment in a Bulgaria prison. And where, as a

practical consequence thereof, they will be denied contact with their families andare opportunities that their own societies would otherwise offer for their eventualrehabilitation.

1.2. No Possibility of Parole Nationality and Property - A Different Legal Status isCreated for Non-Bulgarians Accessing Conditional Early Release

1.2.1.That in 2003 the Respondent Ministry for Justice published and notificationentitled Information Brochure on the Rights and Obligations of Prisoners inthe Sofia Prison Elaborated with the Financial Support of the European

Initiative for Democracy and Human Rights Sofia 2003 [ 2003 . ]and claims to have distributed this to all non-Bulgarian citizens.

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1.2.2.That on page 7 of the 2003 .

it is written that non-Bulgarian citizens have no possibility to candidate for conditional early release[see article 70(1) Bulgarian Criminal Law] if their or their familys propertystatus is such as does not allow for them to make payments of money to the

budget of the Respondent Ministry for Justice or to settle debts allegedly owedBulgarian citizens.

1.2.3.That the only exceptions made by the Prosecutors General to the foregoing arethose non-Bulgarian citizens;

1.2.3.1.Who have paid bribes and thereby secured from within prison what are

forged bank and other official documents falsely showing their havingsettles having families whose property status is different from the majorityand allows them to make payments of money to the budget of theRespondent Ministry for Justice or to Bulgarian citizens [see prisondossiers of ];

1.2.4.

1.2.4.1.

1.2.4.2..

1.3. Discrimination Policies Practiced at Sofia Central Prison - Facts Relevant toUnlawful Segregation According to Nationality Denying of Access to EqualOpportunity Prison Housing and Fulltime Gainful Employment, VocationalTraining and Higher Education and Access to Religious Worship

1.3.1.1.That the prison in the city of Sofia [see item 4 ORDER LC 4-277/2002and item 14 ORDINANCE 4/2001 and the words ] has attached to it three (3) types of

penitentiary facilities [see the law according to article 8a(2) of the Law for the Execution of Punishments ];

1.3.1.2.That the penitentiary facility located at 21 General Stoletov in the cityof Sofia is designated by the Respondent Ministry for Justice as amaximum security penitentiary facility to be attached to the prison in thecity of Sofia [hereinafter referred to only as the Sofia Central Prison] andas designated exclusively for the isolation of repeat offenders [seearticle 12 of the Law for the Execution of Punishments and the words in conj. with article18(1) item 8 of ORDINANCE 4/2001 and the words - .];

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1.3.1.3.That the Sofia Central prison, because of its designation by theRespondent Ministry for Justice as a maximum security penitentiary

facility for the isolation of dangerous repeat criminal offenders, has as aresult of that designation, the harshest and most stringent security measuresand physical restrictions imposed on the movement of prisoners both onand off prison grounds [see article 44(5) of the Law for the Execution of

Punishments and the words ]and that as a result of these security restrictions there are very fewopportunities for any employment or no possibility for direct or frequentfamily contact.

1.3.1.4.That of the three (3) penitentiary facilities types attached to the prison inthe city of city, the Sofia Central Prison is intended by the respondent to bethe most psychologically oppressive and dehumanizing.

1.3.1.5.That presently there are approximately 800 individuals with criminalsentences in force and who have been assigned by officials of theRespondent to serve the term of their imprisonment at the Sofia CentralPrison.

1.3.1.6.That of the 800 prisoners now servicing their terms of imprisonment at theSofia Central Prison, more than 25% or some 108 non-Bulgarian citizensare isolated in the 10 th Prisoners group and who are not repeat criminaloffenders, not at least according to former Deputy Minister ofr Justice Mr.Mario Dimitrov [see Imitrov .

1.3.1.7.That according to the instructions of the Respondent, no more that 5% of these 800 prisoners can be first time offenders [see article The majority of these are considered dangerous repeat criminal offenders [recidivists].

1.3.1.8.That presently there are approximately That all non-Bulgarian citizens

1.3.1.8.1.That the Sofia Central Prison is not permitted to have a prison population of convicted first time offenders of more than 5% andwho have in writing agreed to serve the terms of their imprisonment

at a maximum security prison accommodating dangerous repeat for the housing among at the that only with of its prison maximumsecurity penitentiary facility attached to the prison in the city of Sofiaand.

That all non-Bulgarian citizens having criminal sentences are segregated from all non-Bulgarian citizens housed at the 10 th Prisones Group

Isolation Role of Financial Status and Nationality

That 37 of 104 is the Number of Non-Bulgaria Citizens Denied Candidacy for Possible

Parole

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As of 31.12.2005, of 37 non-Bulgarian citizens formally eligible for conditional early release36 were denied a review before the Sofia Prison Parole Commission by Prison Warden

Dimitar Raichev and Deputy Warden Rumen Milev. Thereby no possibly existed for their candidacy for possible conditional early release before a Bulgarian court of law.

That From 08.2004 to December 2005 Only 3 of 37 Non-Bulgaria Citizens with DebtsHave had a Review by the Sofia Prison Parole Commission

With the exception of the Applicant and possibly two others, none of 37 individuals identifiedin the evidence has ever be reviewed by the Sofia Prison parole COMMISSION.

When asked why, Sofia Prison Warden Dimitar Raichev, Deputy Warden Rumen Milev and of the 10 th Prisoners cell block have each cited item 4 of ORDER LC 4-277/2002 ascreating a legal obligation for them as Sofia prison officials to use the possibility of earlyrelease to coerce money from all non-Bulgarian citizens and there families. According tothem. There can be no parole review where the foreign offender or his family is unable tomake payments. These threats are carried out Sofia Prison Warden Dimitar Raichev, DeputyWarden Rumen Milev and of the 10 th Prisoners cell block in what has proven for themost part to be a vain attempt to exchange liberty under parole for settling of private financialobligations to a Bulgarian citizen or the state.

That The Respondent Has In Fact Ordered the Sofia Prison Administration to OfferCondition Early Release to Non-Bulgarians Only in Exchange for Money

According to the evidence on page 7 of the Information Brochure on the Rights and Obligations of Prisoners in the Sofia Prison Elaborated with the Financial Support of the

European Initiative for Democracy and Human Rights Sofia 2003 for Foreign Citizens asauthored by the Respondent, translated into 8 languages by the Respondent, and then printedand distributed by Sofia prison officials only to non-Bulgarians. In it on page 7 theRespondent imposes a financial criterion and the coercive measure of refusing conditionalliberty anyone whose family cannot pay his financial debts. Sofia Prison Warden Raichev andDeputy Warden Rumen Milev are those who identify the debts to be paid and who createadministrative obstacles to bar access to a judicial procedure. A fact borne out by this Courtand not disputed by the Respondent who has examined each of the names of the 37 non-Bulgarian citizen eligible for parole and the Sofia Prison Parole Commission PROTOCOLSstarting in August 2004.

That the Respondent has Appended the Criterion of Nationality and Financial Status to

Article 70 of the Bulgarian Criminal CodeThe described coercive measure of liberty in exchange for debt is not a part of law [see Article70 CC and article 17 Law for the Execution of Punishments]. This coercive measure andcriterion of nationality and financial status has been administratively appended by theRespondent to article 70 CC and to article 17 Law for the Execution of Punishments . Thenationality and financial criteria for parole are applied in an operative manner by Sofia PrisonOfficials who now demand money as well as the only legislated criterion of good behavior, ana positive attitude to work, and having completed half the term of imprisonment.

Respondent Does Not Consider Discriminatory Criterion and Method of Coercion forCollecting Debts from Non-Bulgarian Citizens as Unfair or Unlawful

The inability of a non-Bulgarian citizens family to settlement his financial obligations inBulgaria is punishment of the prisoner. Who, notwithstanding how exemplary his rewarded by

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his requiring he serve the full term of his criminal sentence and beyond, the imprisonment of non-Bulgarian citizens continues after their release. On release from criminal liability, the

Respondent then remands non-Bulgarian citizens to continued detention under arrest atfacilities of Bulgarias Ministry for Interior until such time as they pay off their financialobligations in Bulgaria.

That first time offenders who are required to serve their term of imprisonment in a prison of Sofia are accommodated according to the term of their sentence in one (1) of either of the two(2) other penitentiary facilities attached to the prison in the city of Sofia, id est light security[transitional] at Kazichan or medium security [open] at Kremekovski and as is required

by the law according to article 12a of the Law for the Execution of Punishments . Both these penitentiary facilities are attached to the prison in Sofia.

That as of 12.31.2005 there are 47 non-Bulgarian citizens and first time offenders eligible for

relocation to either the light or medium security penitentiary facilities attached to the prison inSofia. And that the Respondent refused to relocate them.

That the Sofia Central Prison is the designed by the Respondent as the separateaccommodation necessary for the strict control of repeat offenders [recidivist] as required bythe law according to article 12(1) of the Law of the Executions of Punishments .

That only those Bulgarian citizens who are repeat offenders [recidivists] are [ see again article12(1) Law for the Execution of Punishments ] serving terms of imprisonment at the maximumsecurity penitentiary facility attached to the prison in the city of Sofia, the Sofia Central. Theonly exceptions those citizens of Bulgaria and first time offenders who have requesting or secured work at the Sofia Central prison or are still awaiting relocation to the light or medium

security penitentiary facilities attached to the Sofia prison.Those prisoners who are not citizens of Bulgarian citizens, like Bulgarian career criminals[recidivists], are also required to serve the full term of their imprisonment at the samemaximum security penitentiary facility attached to the prison in Sofia, the Sofia Central

prison. Officials and representatives for the Respondent repeatedly have insisted before thiscourt that where and when it concerns the rights of those prisoners who not citizens of Bulgaria the Respondent has no legal obligation to observe Bulgarian law according to article12a of the Law for the Execution of Punishments . Bulgarian career criminals [recidivists] andforeign citizens to be placed into the most severe prison environment.

That those prisoners not citizens of Bulgaria and who are repeat offenders are accommodated

together with first time offenders in the same [10th

] Prisoners Group of the Sofia Central prison. Again, Officials and representatives for the Respondent repeatedly insist even beforethis court that where and when it concerns the rights of those prisoners who not citizens of Bulgaria the Respondent has no legal obligation to observe the law according to article 12 of the Law for the Execution of Punishments .

That those prisoners [recidivists] to serve the term of their imprisonment at the maximumsecurity penitentiary facilities [ see again article 12(1) of the Law for the Execution of

Punishments ] are by virtue of their prior criminal convictions excluded or very limited inopportunities otherwise available to first time offenders according to the law in article44(2)(3) and (4) and articles 65, 66, 66a, 66b, 68 and 69 of the Law on the Execution of

Punishments.

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That those prisoners [first time offenders] serving their term of imprisonment at a penitentiaryfacilities of the light security [transitional] Kazichan or medium security [open] types at

Kremekovski [ see again article 12a of the Law for the Execution of Punishments ] andattached to the prison in Sofia are permitted and in fact encouraged by the Respondent toenjoy the full benefits and opportunities provided for in law in article 44(2)(3) and (4) and articles 65, 66, 66a, 66b, 68 and 69 of the Law on the Execution of Punishments .

That Officials and representatives for the Respondent have repeatedly insisted that where andwhen it concerns the rights of those prisoners who not citizens of Bulgaria they have no legalobligation to observe the law according to article 44(2)(3) and (4) and articles 65, 66, 66a,66b, 68 and 69 of the Law on the Execution of Punishments. As a result and during the fullterm of their imprisonment, those prisoners who are not Bulgarian citizens are routinelydenied equal access to any form of education, gainful employment, recreation or familycontact under the same conditions permitted first time Bulgarian offenders.

satellite dishes computer etc..

That are according to the Respondent only accommodated at the maximum security penitentiary facility attached to the prison in the city Sofia, the Sofia Central at located at 21 General Stoletov.

That ALL non-Bulgarian citizens convicted of crimes in the Republic of Bulgaria are alsoisolated from all Bulgarian citizens and housed only in the 10 th Prisoner group of themaximum security penitentiary facility attached to the prison in the city Sofia at located at 21 General Stoletov where they are fed separately, exercised separately and work separately.

What Is Not A Subject, A Legal Controversy or Fact in Dispute Before this Court?

The Applicant, after having heard the opening statements made on the Record by the legalrepresentative for the Respondent and the Supreme Administrative Prosecutors Office andafter familiarizing himself with a number of administrative cases having similar complaintsdefended by equally as incompetent and legally naive applicants, finds it prudent to clarify tothis Court what is not being legally challenged [see inter alia Supreme Administrative Courtcase 566/2004 Haralampinev Kolarov ( ) v.Ministry for Justice/ORDER LC-4-277/02 RULING 6415 issued on 2004.07.07

by the 3 Member Membership of the Fifth Division Judge Zaharinka Todorova ( ) Reporting for the court ]. The reason for this isthat there appears some confusion on what it is the Applicant claims and is asking for fromthis court.

Not a Subject Matter of this Complaint

The Whole of ORDER LC 4-277/2001

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The present legal controversy raised by this Applicant does not have as its subject matter achallenge as to the lawfulness of the whole of ORDER LC 4-277/2001.

The complaint of the Applicant KAPOUSTIN concerns only item 4 of ORDER LC 4-277/2002 and then only those specific provisions, words or phrases found there and identified

by the Applicant as contravening tangible provisions of national law and incompatible withthe legislated purpose of the Law for the Execution of Punishments inter alia, the instructionsissued by the Respondent for the forced isolation of the Applicant and all non-Bulgariancitizens not only from all members of Bulgarian society but also from all opportunitiesafforded to members of Bulgarian society in law and at places of work, housing, education,religion and finally a right to liberty.

Not Part of the Present Legal Controversy

Issuing of ORDER LC 4-277/2002

The Applicant has not raised a challenge and considers there to be no legal controversy over the right and exclusive jurisdiction of Bulgarias Minister for Justice to issue ORDER LC 4-277/2002 or others like it. The Applicant acknowledges the issuing of such an ORDER to bewithin the constitutional and legislated competence of Bulgarias Minister for Justice. Who,according to article 15 of the Law for the Execution of Punishments has the positive legal dutyas Bulgarias Minister for Justice to ex officio specify what penitentiary facilities are toaccommodate those groups of prisoners having the legal criterion as defined in articles 12,12a and 12c of the Law for the Execution of Punishments .

Housing of Indigents and non-Resident Aliens at a Prison in Sofia

As a result of these constitutional and legislative powers there can be no legal controversy onBulgarias Minister for Justice decreeing that any prisoner, Bulgaria or non Bulgarian citizenand having no permanent residence in the Republic of Bulgaria , is be remanded to a

penitentiary facility attached to a prison in the city of Sofia. However, and as a point of law,the Court is requested to turn its close attention to the national law requiring according toarticle 8a(2) Law for the Execution of Punishments that there be attached to each prison a

penitentiary facility of the light [open], medium [transitional] and maximum security [closed]types. These are three (3) very different and distinct types of facilities that according to thesame national law article 8a(3) of the Law for the Execution of Punishments are legislated intoexistence by Bulgarias parliament for the express purpose of creating very different physicalsecurity, living conditions, reforming and psychological impact on not only the prisoner but

also on his family. Furthermore, the court is requested to turn its attention to a point of fact,that there are 3 penitentiary facilities attached to the prison in the city of Sofia, these are theminimum security penitentiary facility at Kazichen, the medium security penitentiary facilityat Kremekovski and the maximum security penitentiary facility at Sofia Central Prison. Of these the one designated to house only repeat offenders and whose prison population isprohibited by item 7(2) of ORDER LC 4-277/2002 to be more than 5% first timeoffenders is the maximum security penitentiary facility at Sofia Central Prison . It now anotorious public fact that the Sofia Central Prison is the harshest and most corrupt prison inBulgaria. Living conditions here are intentionally hard and according to article 12a(1) of the

Law on the Execution of Punishment intended only for criminals who refuse to berehabilitated and so need to be isolated at a maximum security penitentiary facility [closedtype]. The Applicant and 100 of the 104 non-Bulgarian citizens isolated at the Sofia CentralPenitentiary are all first time offenders.

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Internal Order of For Housing Assignment of A Prisoner

Finally, the present controversy is not a legal challenge as to the lawfulness of an internal order

[ ] issued by an official of the Respondent for the movement of the Applicant or an other prisoner from one penitentiaryfacility to the other and therefore ultra vires the competence of Supreme AdministrativeCourt. See again the citation Supreme Administrative Court RULING 6415/2004.07.07.where Reporting Madam Justice Saharinka Todorov [ ] writes;

, , . - , "

". , , , , , - " ".

The Applicant does not challenge the 1998 order for his relocation from arrest at the NationalInvestigative Service maximum security arrest facilities at G.M. Dimitrov where he was keepin solitary confinement for the better part of 2 years to the maximum security penitentiaryfacilities at the Sofia Central Prison where he was keep in an isolation cell for the next 6months. an additional. Such complaints not within the jurisdiction of this court.

Law - Controversy Over Legal Obligations of the Respondent

That prison officials of the Respondent are not under any legally binding obligation to allow prisoners who are not citizens of Bulgaria to have access to the provisions of law found inarticle 12a and articles 44(2)(3) and (4) and articles 65, 66, 66a, 66b, 68 and 69 and 74(1)items f, g, h and i of the Law on the Execution of Punishments as is legally required and under the same conditions as citizens of Bulgaria.

That the prison commissions formed under article 17 of the Law for the Execution of Punishments are not under any legal binding obligation to allow prisoners who are not citizensof Bulgaria to have access to a judicial procedure for reviewing their candidacy for possibleconditional early release under the same conditions as prisoners who are citizens of Bulgaria.

That prison commissions formed according to under article 17 of the Law for the Execution of Punishments are not independent of and not legally answerable to the Respondent or to any

judicial or administrative oversight body.

That the Respondent makes no distinction according to prior criminal record when are made

That, according to other data, there are cated The abovecited laws and item 4 of ORDER LC 4-277/2002 have no provision creating a positive legal duty requiring Bulgarias MainDirectorate for the Execution of Punishments and the administration of the prison in Sofia toonly accommodate at the maximum security penitentiary facilities attached to the prison inSofia all those prisoners having no permanent residence in Bulgaria [homeless],

notwithstanding their status established according to the criterion of only.

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Furthermore, the abovecited laws and item 4 of ORDER LC 4-277/2002 have no provisioncreating a legal negative restriction prohibiting Bulgarias Main Directorate for the Execution

of Punishments and the administration of the prison in Sofia from accommodating those prisoners having no permanent residence in Bulgaria [homeless] in the light to mediumsecurity penitentiary facilities attached to the prison in the city of Sofia.

However, the Court is requested to pay close attention to the fact that there are three (3) verydifferent types of penitentiary facilities attached to the Sofia prison and that the text found initem 4 of ORDER LC 4-277/2001 persons who are not citizens of Bulgaria suffer the termof their imprisonment at a prison in the city of Sofia [, . see former deputy Minister Mario Dimitrov Ministry for Justice Letter 94-M-147 dated 13.09.2004] does nothave a provision specifying or imposing any negative restriction at which of the three (3)facilities [Kazichen, Kremekovski and Sofia Central] non-Bulgarians may or may not beaccommodated. Or, more specifically, there is no provision in item 4 of ORDER LC 4-277/2001 ordering ALL non-Bulgarian citizens to be housed ONLY at the maximumsecurity penitentiary facilities for recidivists as attached to the Sofia prison and designed as theCENTRAL PRISON [address 21 General Stoletov Sofia].

What are the Legal Controversies and Challenges Brought by the Applicant

Unlawfulness

The Applicant asserts that text provision of it is unlaw Indirect Discrimination

Law

Bulgarias Constitution, its numerous international treaties and the new Law for Protection Against Discrimination each have very clear provisions creating negative restrictions againstthe practice of any form of discrimination where rights or obligations are determined orcreated solely according to criteria of ethnic or nation origins, citizenship and property,public or legal status . Legislated exceptions are permitted and found only in cases necessaryfor the protecting of the rights of others. But limitations imposed on right derogation of acertain right never to the detriment of the rights of another group [ inter alia non-smokersrights v. smokers rights, the right of access for the physically handicapped].

The Bulgarias Constitution and several national laws, contain tangible legal provisionscreating a positive legal duty requiring Bulgarian Public [Correction] Officials to observe, exofficio , and under penalty of law, all national laws exactly as they are written and to report tothe competent Bulgarian investigative and disciplinary authorities any published or unpublished order issued to them by a Public [Prison] Official of higher office if the a

provision of the order contravenes a tangible legal provision of Bulgarian national law and itsimplementation would be incompatible with the purpose of a law [Law for the Execution of Punishments] and would cause metal, physical or property injury or create undue or unnecessary hardship or distress the person whose legal or civil rights are being derogated,denied or abused as a result of a specific provision or order.

The Bulgarias Constitution and its Criminal Code do not poses any provision creating aseparate legal status or separate rights or obligations for non-Bulgarian citizens convicted for the commission of a crime in Bulgaria. Accordingly non-Bulgarian convicts and Bulgarian

convicts are to have the same rights, protections, opportunities and obligations as defined inthe Law for Execution of Punishments and other relevant national law.

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Article 70 of Bulgarias Criminal Code has no legal provision setting a financial or nationalitycriterion necessary for the determining of a candidate for conditional early release. There is no

legal provision for the collection of civil or administrative debts by officials of the prosecutionor prison officials of the Respondent Ministry for Justice before allowing a convict tocandidate for parole. Subjective criteria inter alia conduct of the convict, attitude to work,continued threat to society and if the remaining term of imprisonment speaks to the nature of the crime are to be determined solely during an open and adversarial proceeding before a courtlaw having competent jurisdiction.

The Sofia Prison Warden is an appointee of the Minister for Justice deriving his plenary powers from a power of attorney issued by the Minister for Justice.

According to Article 17 of the Law for the Execution of Punishments , the Sofia Prison Wardenforms twice monthly a collective administrative body known as the Commission and whose

voting members are subject to the orders and supervision of the Respondent. The BulgariasConstitution does not endow this Commission or any of its members with the power tointerpret criminal sentences or law, its function solely administrative.

According to Article 120 the Constitution

Only Article 12g of Bulgarias Law for the Execution of Punishments [.12.(,,.103 2004 .) , , , , .] the only provision of Bulgarian national law making a reference to non-Bulgarian citizens. The provision permits Bulgarias Minister for Justice to identify the

location of three distinct types of facilities [prison, correctional home and general hostels]attached to a penitentiary a particular facility are to accommodate non-Bulgarian citizensaccording to Art. 12a of the same law [Law for the Execution of Punishments]. house are to

prisons , distinction as to

The incarceration of all first time non-Bulgarian [foreign] citizens only in a Bulgarianmaximum security penitentiary facility when convicted to prison terms in Bulgaria is not alegislated part of any provision found in the Bulgarian Criminal Code or Law for the

Execution of Punishments.

Therefore, any psychological torment, physical or other forms of distress and hardshipinherent to incarceration in a Bulgarian maximum security prison are not incidental

[secondary consequences] to the imposing of a lawful criminal sanction [ see BulgarianCriminal Code ] on a first time non-Bulgarian offender [foreign citizen] and therefore cannot

be justified in the absence of a national law or in individual cases a criminal sentenceexplicitly imposing such conditions.

It is well documented [see Bulgarian Helsinki Report 2002 and European Commission ]that foreign citizens convicted for crimes committed in Bulgaria are treated as illegalaliens equal in rank to terrorists or traitors against the Republic of Bulgaria [ seeTerrorists and Tourists Provision art. 20 ORDINANCE 4 issued on 29.03.2001 bythe Respondent Minister for Justice RB, State Gazette issue 35 06.04.2001 ] and as aresult suffer greater direct and indirect discrimination within Bulgarias correction

institutions to the point of their almost complete elimination from housing, employment

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and educational opportunities, and granted grossly inadequate access to healthcare andlegal assistance or competent translators while in arrest and prison.

The Applicant asserts in his complaint that from 1991 the Ministry for Justice for theRepublic of Bulgaria has responded with gross indifference towards the failure of

prison officials to observe the equal legal rights of imprisoned non-Bulgarian citizensand has ignored completely the inherent humanitarian concerns associated with animprisonment that as a practical matter will deny to non-Bulgarian citizens regular contact with their families and no contact at all with the society or culture theyultimately must return to. When issuing specific instructions in item 4 of ORDER LC 4-277/2001 ordering that non-Bulgarians be isolated from Bulgarians, the Respondenthas attributed a lesser legal and human status to those men and woman who byaccident of birth happen not to be Bulgarian citizens.

Indoingso, the Respondent has clearly contravened numerous tangible provisions of Bulgarias national laws and its international treaties. It unlawful to attributing a lesser status to those non-Bulgarian citizens who are against their will and that of their homestates are required by the Prosecutors General for R.B to serve the full term of their criminal sentences within a Bulgarian correctional institution [ see inter alia Letter 12687/2000 issued on 19.03.2004 by the Prosecutors General for the Republic of

Bulgaria through the Respondent Ministry for Justice Bulgaria to the Ministry for Justice for Canada rejection of Government of Canada transfer prisoner transfer requestand Letter 16992/2004.VI issued on 20.07.2004 by the Supreme Cassation

Prosecutors Office on Polish government request for prisoner transfer and RULING 7752/2003/184424/31.08.205 for ending liquidation proceedings issued by the Agency

for State Takings R.B.]Therefore, the present legal controversy must test the lawfulness of those specificinstructions found in [see item 4 ORDER LC 4-277/02 ] or attributed to arising fromORDER LC 4-244/2001 [see Letter 10691/04 from Supreme Cassation Prosecutor

K. Vulcheva the Respondents ORDER LC 4-277/2001 and page 7 Information Brochure on the Rights and Obligations of Prisoners in the Sofia Prison Elaborated with the Financial Support of the European Initiative for Democracy and Human Rights Sofia 2003 for Foreign Citizens ] and directly or indirectly creating distinctly different and visiblyunequal legal and human rights for a non-Bulgaria and equally visible fewer material[financial] obligations or legal and human rights concerns of the Respondent towards men and

women who are not Bulgarian.The present legal controversy is henceforth a constitutional question requiring the SupremeAdministrative Court for the Republic of Bulgaria to establish the Respondents observance of an important legal principle and fundamental civil right found in Article 62 of theConstitution for the Republic of Bulgaria and enshrining the words that everyone shall beequal before the law . This legal controversy can only properly be resolved by this Courtsapplication of tangible and specific legal provisions of the Constitution for the Republic of

Bulgaria and Bulgarias international treaties to not only the written instructions found initem 4 ORDER LC 4-277/2001 but also the direct or indirect negative consequences provento be a result thereof. The important question before this Court concerns the Respondentsapplication and observance of these tangible legal principles and the legal, financial andethical obligations of the Respondent to respect the equal rights of non-Bulgarian offenders

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[foreign citizens] to enjoying the protections and opportunities afforded prisoners under Bulgarias national laws and its treaties.

Unsettled and yet to be determined questions of fact are if the forced isolation of ALLforeign citizens in a maximum security prison environment is a security measurecompatible with Bulgarias Law for the Execution of Punishments and somehow theRespondent can justify so extreme a measure by some legitimate security concerns or other needs of the Respondent requiring the isolation of ALL non-Bulgarian citizensand denying [education, gainful employment at minimum wage both on and off prisongrounds, reduction in the term of their sentence, unsupervised leaves to maintain socialcontact with their family and conditional early release or probation under the sameconditions as Bulgarian citizens] or derogating from other legal rights or opportunities

provided for in Bulgarias national laws and equally available to non-Bulgarians.

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Clarifications of Complaints Subject Matter

The Applicant more accurately defines the Complaints subject matter to be against thoseinstructions [unlawful and discriminatory] found item 4 Ministry for Justice ORDER LC -4-277/2001 and other legally offensive provisions found therein or as may otherwise be

published or unpublished and issued by the Respondent Ministry for Justice for determiningdifferent rights or obligations and placing special limitation on existing civil or legal rightssolely according to the criteria of non-Bulgarian nationality [citizenship] or according to thefinancial status of a foreign citizen [ inter alia legal opportunities under article 70 CC aredetermined by an offenders nationality and his financial liquidity].

The Applicant complains against i tem 4 of Ministry for Justice ORDER LC -4 -277/2001

and the legally offensive provision instructing officials of the Respondent to place those persons in " [see attached Letter 8319/16.09.2004 from MainDirector Execution of Punishments Director Peter Vassilev];

The also complains against the legally offensive provision or clause in Ministry for JusticeORDER LC -4 -277/2001 with words instructing officials of the Respondent at the Sofia

prison that persons , ." [see again Letter 10691/04 from SupremeCassation Prosecutor K. Vulcheva ]

The Applicant also complaints against the legally offensive provision or clause in Ministry for Justice ORDER LC -4 -277/2001 announced by the respondent on page 7 of the Information Brochure on the Rights and Obligations of Prisoners in the Sofia Prison

Elaborated with the Financial Support of the European Initiative for Democracy and Human Rights Sofia 2003 prepared and distributed by the Respondent Ministry for Justice andinforming non-Bulgarian offenders [foreign citizens] that Bulgarian national law [article 70CC] determining conditional early release will not be apply for those [non-Bulgariancitizens] offenders who have unpaid debts [see again Information Brochure on the Rightsand Obligations of Prisoners in the Sofia Prison Elaborated with the Financial Support of the

European Initiative for Democracy and Human Rights Sofia 2003 ].

Proceeding on the above and according to the legal maxim n on jus ex regula, sed regula ex jure that the law does not arise from the rule, but the rule from thelaw, the Applicant alters the legal controversy of his original Complaint

The Applicants complaints now revolve around two controversies (1) item 4 of Ministry for Justice ORDER LC -4 -277/2002 where the Respondent has provided instructions for thedifferent treatment and application of Bulgarian nationals law to non-Bulgarian offenders[foreign citizens] to accommodated in Bulgarian prisons, and (2) the interpretation andapplication by Sofia Prison officials of Ministry for Justice ORDER LC -4 -277/2002, andthe resulting policy of refusing to observe their ex officio remedial obligations to non-Bulgarians as required according to what are otherwise imperative legal provisions found

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under the Law for the Execution of Punishments [see again Letter 10691/04 fromSupreme Cassation Prosecutor K. Vulcheva .

As a result, the Applicant insists that the instructions stipulated in item 4 of ORDER LC -4-277/2002 , the interpretation of those instructions by officials of the Respondent and thenotification on page 7 of the Information Brochure on the Rights and Obligations of Prisonersin the Sofia Prison have each contravened tangible legal provisions of the Constitution

for the Republic of Bulgaria [ Articles 6, 262, 531, 571, 58and 60(1) ] and numerous provisions of Bulgarias international treaties [ see inter alia , Articles 3 and 14, European Convention on Human Rights; Articles 3, 7, 20 and 26 International Covenant On Civil And Political Rights (U.N.T.S. No. 14668, vol 999 (1976), p. 171.);Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, G.A. res. 39/46 signed by Bulgaria 10 Jun 1986 16 Dec 1986;; Article 1,

Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as Adopted by General Assembly resolution 3452 (XXX) of 9 December 1975; .] and are also incompatible withthe legislated purposes of articles 2(2), 8(2), 12a, 12g and 14(4), Bulgarias Law for the Execution of Punishment and articles 4(1) and 4(3), Bulgarias Law for Protectionagainst Discrimination.

Furthermore, the Constitution and Bulgarian national law regulating the issuance of administrative orders, decrees or ordinances demands that the Respondent Ministry for Justice for the Republic of Bulgaria or the person appointed by him, must ex officio andex jure before issuing any administrative act or order, insure its compliance with theConstitution for the Republic of Bulgaria , and those normative acts of a higher power and Bulgarian national laws.

Clearly that is not the case here.

JUDGMENT SOUGHT

Accordingly, the Applicants Petition to this Court is for it to apply article 12 items 3 and 4 of the Law for the Supreme Administrative Court and immediately sentence the Respondent to;

1. Remove the legally offensive and unlawful written instructions found in item 4 of ORDER LC -4 -277/2002 , the forced isolation at a maximum security prison solelyaccording only to the criteria of an offenders [prisoners] nationality cannot be legally

justified and the Respondent to be ORDERED to immediately house non-Bulgariancitizens according to the demands of Bulgarian national law and at any of the threedifferent accommodations of open, transition and half-open facilities presently attached tothe Sofia prison and according to their individual term of imprisonment [ Art. 12a and Art.12g Law for the Execution of Punishments ] and their prior criminal record [ Art. 12 Law

for the Execution of Punishments ];

2. End Sofia prison administration practices arising for a legally wrong interpretation of item4 of ORDER LC -4 -277/2002 , the isolating of non-Bulgarian citizens fromopportunities in education, full-time supervised [guarded] and unsupervised

[unguarded] employment at minimum wage on or off prison grounds and socialcontacts with their families through unsupervised leaves cannot be legally justified

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solely according to the criteria of an offenders [prisoners] nationality. The Respondentmust be ORDERED to immediately allow non-Bulgarian citizens equal opportunity to

access education, full time employment and social contact with family members under thesame conditions as Bulgarian citizens have at the same Bulgarian prison;

3. Remove the legally offensive and unlawful criteria established by the Respondent on page 7 of the Information Brochure on the Rights and Obligations of Prisoners in theSofia Prison , the determining of different rights or opportunities in national criminallaw cannot be legally justified solely according to an offenders [prisoners] non-Bulgarian nationality or his property and income status or that of his family. TheRespondent must be ORDERED to instruct officials at the Sofia Prison to end theirunlawful and psychologically distressing and inhumane practice of attempting tocoerce payment of financial obligations from non-Bulgarian offenders [prisoners] or their families by determining their candidacy for a possible reduction in the term of their imprisonment [see art. 17 Law for the Execution of Punishments in conj. with

formal criteria as established in art. 701 CC conditional early release ] solely accordingto their financial status or their familys ability to pay off debts inter alia fines, or civilor administrative financial obligations to Bulgarian citizens or the State.

Irrefutable Facts

There can be no factual dispute over Applicant claims that according to of item 4 ORDER LC 4-277/02 the Respondent Ministry for Justice has issued instructions ordering that;

1. All first time and repeat non-Bulgarian criminal offenders [foreign citizens] be placedunder severe physical coercion by their incarcerations in Bulgaria only at the maximumsecurity penitentiary facility attached to the Sofia prison;

2. While incarcerated they are to be subjected to isolation and the mental degradation andunnecessary psychological torment associated with being isolated from all the others ;

There can be no factual dispute over Applicant claims that a vicarious affect of item 4ORDER LC 4-277/02 is to incite senior officials at the Main Directorate for the Execution of Punishments and Sofia prison officials of the Respondent Ministry for Justice to issueinstructions ordering that;

3. Non-Bulgarian citizens are to be denied access to educational opportunities, familycontacts through regular unsupervised leaves and are not to be allowed supervised[guarded] or unsupervised [unguarded] employment off prison grounds;

4. Non-Bulgarian citizens with no prior criminal record and good behavior but insufficientproperty or income to settle contractual or other debts are not to be allowed access toan administrative [ see again art. 17 Law for the Execution of Punishments ] or judicial[see art. 415(1) item 2 CCP] procedure for reviewing of their continued imprisonment

beyond the maximum half term as envisioned in criminal law [art. 701 CC];

Discussion

The Controversy

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There can be little debate that the nationality criteria appearing as a provision of item 4in Ministry for Justice ORDER LC -4 -277/2001 is discriminatory in nature.

However, the present legal controversy and complaint of the Applicant does not concernthe Respondents discretionary legal right to issue instructions on the housing of non-Bulgarian citizens [ see Art. 12g Law for the Execution of Punishments ] at a prison in Sofia if they have no legal residence in the Republic of Bulgaria.

Therefore, the legal controversy to be discussed by this tribunal must center upon theunlawfulness of that part of this provision having as its stated purpose and physical objectivethe confining all non-Bulgarian citizens only to maximum security penitentiary facilitiesin the Republic of Bulgaria and isolating them from everyone else.

The detritus negative physical and psychological affects resulting from years of such isolationcannot be underestimated as a consequence or avoided as a consideration when this Courtreviews the constitutional question of if this provision of ORDER LC 4-244/01 iscompatible with the legislated and stated remedial intent of the Law for the Execution of

Punishments [see articles 2(2), 8(2), 12a, 12g and 14(4), Bulgarias Law for the Execution of Punishment ].

The Applicants complaint asserting that the decision by officials at the Main Directorate for the Execution of Punishments to confine non-Bulgarian citizens only to the maximum security

penitentiary facilities attached to the Sofia prison and isolating them there cannot belegitimized by the Respondent as having any lawful purpose.

No Lawfully Purpose

At no time has the Respondent Ministry for Justice invoked any particular securityreasons requiring it to isolate non-Bulgarian first time offenders [foreign citizens] in aBulgarian maximum security prison.

The Respondent has at no time mentioned why it was not possible to revise theaccommodations of non-Bulgarian [foreign] prisoners so as to satisfy the requirementsof law [see articles 12a and 12g Law for the Execution of Punishments ] and providethem with adequate possibilities for family contact and a sensible occupation or education both on and off prison grounds during the term of imprisonment.

Furthermore, the Respondents instructions for isolation of foreign citizens only inmaximum security penitentiaries cannot be legitimized as a reasonable limitation

demonstrably necessitated by the fact that the incarceration concerns a non-Bulgariancitizen and not a Bulgarian citizen.

The Ministry for Justice for the Republic of Bulgaria knows only to well that accordingto the Basic Principles for the Treatment of Prisoners all prisoners retain their humanand civil rights and fundamental freedoms as set out in the Universal Declaration of

Human Rights , and, where the Bulgaria State is a party, the International Covenant on Economic, Social and Cultural Rights , and the International Covenant on Civil and Political Rights and its Optional Protocol .

Non-Bulgarian offenders [foreign citizens] must be given opportunities and rights equalto their Bulgarian counterparts as is setout in Bulgarias national laws.

Therefore, the Respondent Ministry for Justice cannot lawfully or reasonable justifysubjecting an entire and distinct group of prisoners to unnecessary hardships and

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avoidable constraints during the term of their incarceration and solely on account of their non-Bulgarian citizenship, [ see 1992, explanatory notes United Nations Human

Rights Committee , [N]ot only may persons deprived of their liberty not be subjected to [torture or other cruel, inhuman or degrading treatment or punishment]but neither may they be subjected to any hardship or constraint other than that resulting

from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons. Persons deprived of their liberty enjoy all the rights set forth in the [ICCPR], subject to the restrictions that are unavoidable in a closed environment ].

Explanations offered by senior officials and former Deputy Minister Mario Dimitrov,that; , , , . [see former deputy Minister Mario Dimitrov Ministry for Justice Letter 94-M-147 dated13.09.2004] and therefore isolation in a maximum security prison attached to the Sofia

prison is for the benefit of foreign citizens is not only lame but legally and factuallyunsupportable.

The explanations offered by Sofia prison officials to consular officials of theGovernments of Canada, the United States and states of the European Union that the

placing of their nationals in a maximum security penitentiary is a consequence of national law is, as we have seen, legally unsupported. No such Bulgarian national lawexists and only it item 4 Ministry for Justice ORDER LC -4 -277/2001 that makes adistinction between the rights of non-Bulgarian and Bulgarian prisoners.

Attempts by Sofia prison officials to excuse the housing of foreign citizens only inmaximum security facilities as being necessitated by the government of Bulgariasdifficult financial circumstances and that therefore is no other option for theRespondent except to incarcerate them [foreign citizens] exclusively in a maximumsecurity prison facility is legally inadmissible [ see Mukong v. Cameroon (No.458/1991) (August 10, 1994), U.N. Doc. CCPR/C/51/D/458/1991. Minimumrequirements regarding floor space, sanitary facilities, provision of food, etc., must beobserved, "even if economic or budgetary considerations may make compliance withthese obligations difficult ") and not true since Bulgarian citizens are routinelydistributed between the other two penitentiary facilities connected to the Sofia prison

[see Sofia prison COMMISSION PROTOCOLS (Minutes) from August 2004 toOctober 2005, transfers].

According to Letter 4502 issued in on 30.05.2005 by the Main Directorate for the Execution of Punishment to the Respondent Ministry for Justice, there is no administrativeACT or ORDER creating a financial criteria applying to non-Bulgarian citizens and requiringthem to make payments of money as a precondition to candidate for conditional early releaseaccording to Bulgarias criminal or correctional law [see Art. 17 , Art. 701 CC and Art.415]. However, the credibility of this letter and its claim is refuted by the evidence of thatwritten announcement made in 2003 by the Respondent found on page 7 of the Information

Brochure on the Rights and Obligations of Prisoners in the Sofia Prison Elaborated with the

Financial Support of the European Initiative for Democracy and Human Rights Sofia 2003 .This official publication by the Respondent is unambiguously and setouts out in no uncertain

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terms that the settling of fines or civil debt by a foreign citizen is for the Respondent acondition sine qua non for any non-Bulgarian seeking to become a candidate for parole. A

conclusion supported by the fact of the 37 and still growing number of non-Bulgarian citizensthat the Respondent routinely denies any possibility to candidate for an administrative reviewof their possible early release [ see List, Foreign Prisoners Who As of 12.31.2005 FormallySatisfying Art. 701 CC and Sofia Prison COMMISSION PROTOCOLS (Minutes) from08.2004 to 10.2005]

Most certainly the provisions of article 70(1) of the Bulgarian CC most contains no criteria[financial] as a conditional to early release [parole], therefore the Respondent creating afinancial criterion [see again page 7 of the Information Brochure on the Rights and Obligations of Prisoners in the Sofia Prison Elaborated with the Financial Support of the

European Initiative for Democracy and Human Rights Sofia 2003 ] and applying this to only

non-Bulgarian citizens [offenders] is not only unlawful but also a malfeasance and representsa form of coercion used to threat. Foreign citizens be assured by Sofia prison officials of theRespondent that the will remain in prison to the full term of their criminal sentence is their families cannot pay their debts in Bulgaria. And with this coercion comes the psychologicaldistress of watching others go free while less financial fortunate remain in prison.

In Bulgaria the Respondent required that foreign citizens buy their freedom.

Is it unlawful for the Respondent to determine different forms of treatment under Bulgarian national laws, or to derogate from a civil or legal rights according to thecriteria of a criminal offenders race, nationality or financial status and to impose onhim treatment inconsistent with Bulgarian national law or the Standard Minimum Rules

for the Treatment of Prisoners ? Among other things the imprisonment and isolation of non-Bulgarian only in a maximum security penitentiary facility, refusing non-Bulgarians any possibility for unsupervised family contact or leaves, refusing to givenon-Bulgarians access to remedial education and work programs and the use of

psychological torment and legal coercion by Sofia prison official who attempt to collectfinancial obligations from non-Bulgarian citizens by relying on the Respondentsadministrative powers according to article 17 and 17a of the Law for the Executions of

Punishments .

There is only one object and impartial reply, no and therefore all written and unwritten provisions of Ministry for Justice ORDER LC -4 -277/2001 that create a different alegal status and different obligations for foreign offenders is by its very natureunlawful. It must be amended or revoked by this Court and the isolation of foreignoffenders immediately ended and their equal right to protections and opportunitiesunder the Law for the Execution of Punishments and other Bulgarian national lawsrestored

The Applicant reserves his right to provide additional argument and evidence,

Submitted 14.03.2006.

Michael Kapoustin

Exhibits Provided During Hearing on 14.02.2006 and Accepted Into Evidence

1. Letter 8319/16.09.2004 issuer Main Directorate for the Execution of Punishments. Author Director Peter Vassilev. Citation of item 4 of Respondent ORDER LC 4277/2002. Respondent

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instructions to issuer for isolation of all foreigners at Sofia maximum security penitentiaryfacility notwithstanding the term of imprisonment, prior criminal record or nature of thecrime [against the person or against property or commercial] ;

2. Letter 10691/04.VII/23.02.2006 issuer the Supreme Cassation Prosecutors Office. Author Prosecutor Vulcheva. Citation of Letter 725/20.02.2006 and Respondent ORDER LC 4-277/02. Officials for the Respondent Sofia Central Prison inform Prosecutor Vulcheva thateducation and other remedial programs are by ORDER of the Respondent, not to beoffered to non-Bulgarian offenders ;

3. Letter 94-M-147/13.09.2004, issuer Ministry for Justice. Author former Deputy Minister Mario Dimitrov. Citation of item 4 of Respondent ORDER LC 4-277/2002. Respondent

justifies isolation of all foreigners at maximum security penitentiary facility of Sofia as beingfor the benefit of foreign consuls and for access to translators ;

4. 12.31.2005/List of 47 from 104 foreign citizens as independently prepared by the Applicant.Identifies those European and other foreign nationals having less than a 5 year term remainingto their criminal sentence and who according to Article 12a of the Law for the Execution of

Punishments should be but on the grounds of item 4 Respondent ORDER LC 4-277 are nottransferred to the light security penitentiary facilities of the transition type attached to theSofia prison and as is imperative according to Bulgaria national law ;

5. Letter 3179/18.04.2005, issuer Main Directorate for the Execution of Punishments. Author Director of the Department, no name. Citation of item 4 of Respondent ORDER LC 4-277/02.Grounds for refusing transfer of non-Bulgarian citizen with less than 5 year sentence to alight security [transitional] penitentiary facility attached to the Sofia prison;

6. Letter 1006/08/11/2004, issuer Main Directorate for the Execution of Punishments. Author Deputy Director, no name. Citation of item 4 of Respondent ORDER LC 4-277/02. Grounds for refusing transfer of non-Bulgarian citizen with less than 5 year sentence to a light security

[transitional] penitentiary facility attached to the Sofia prison;7. 12.31.2005/List of 37 from 104 foreign citizens as independently prepared by the Applicant.

Identifies those European and other foreign nationals having formally satisfied all the legaland subjective [good behavior] requirements for parole according to Art. 70(1) of BulgarianCriminal Code. Respondent appointed Sofia Prison Warden Dimitar Raichev determinescandidacy for parole according to the financial status of each non-Bulgarian citizen anddetermines access to an administrative or judicial review of parole available only to thosenon-Bulgarians with demonstrated financial liquidity ;

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8. Letter 4502/30.05.2005. Issuer Main Directorate for the Execution of Punishments. Author Director Peter Vassilev to the Respondent Minister for Justice. Citation of Bulgarian CriminalCode [Art. 70(1) CC] and claim before the Respondent that there is no ordinance or orderthat limits the possibilities of that law. It the court that determines the right for parole. Theofficial statement in this letter contracted by official publications distributed by theRespondent and other official documents given into evidence.

Exhibits Provided Prior to Hearing on 14.02.2006 and Accepted into Evidence;

9. Page 7 of the Information Brochure on the Rights and Obligations of Prisoners in the Sofia Prison Elaborated with the Financial Support of the European Initiative for Democracy and Human RightsSofia 2003 and where it writes conditional early release [parole] will not be apply for those [non-Bulgarian citizens] who have unpaid debts . Court requested from Respondent the Bulgarian text andauthor of the Order having made an addendum to Art. 70(1) of the Bulgarian Criminal Code establishinga financial and nationality criterion as an element sine qua non for a non-Bulgarian citizen to candidatefor parole.

10. Letter Dated 09.08.2002 issuer Bulgarian Helsinki Committee . Author Mr. Stanimir Petrovconfirming completion of an investigation into the a buse of rights of foreign person in placesof detention [prison] with results to be published in September 2002.

11. Letter Dated 12.07.2004 issuer Bulgarian Helsinki Committee. Author Ms. Mila Boyanova.Confirming discrimination against non-Bulgarian citizens and they have a legal statusunequal to that of Bulgarian citizens in places of detention [prisons].

Evidentiary Petitions Denied

12. Request for invitation of Bulgarian Helsinki Committee as an interested 3 rd party.

Discovery Requests Unsatisfied

13. Respondent unable to produce copy of original letter authored by Deputy Minister for Justice Dimitar Bangalov and forwarded, via the Embassy for the Republic of Bulgaria to Canada in November 2005addressed to the wife of the Applicant Tracy Coburn Kapoustin and advising her that according toBulgarian national law as a foreign citizen I was not eligible for parole.

Additional Materials Filed with this Petition

14.

2006.05.02 Pleadings

Documents