До: ВЪРХОВЕН АДМИНИСТРАТИВЕН СЪД

Пето Отделение
ПРЕДСЕДАТЕЛ

Отн: във вр. 8828/2005

Срещу: Министерство на правосъдието

Ул. „Славянска” №
София, 1000

МОЛБА
На Основание чл. 24 ЗВАС
ЗАВИРАНЕ НА ДАННИ
ОТ ОТВЕТНИКА

Уважаема Госпожо Председател,

На основание чл. 4 и 5 от ГПК, като страна канадски гражданин лишен от

свобода, Аз представям на Ангелски език молбата ми за следното ;

Основание за Молба/Grounds for the Request

For some 18 years officials of the Respondent have openly practiced discrimination in
the spheres of prison housing, employment, education and social benefits and equality
under law. These blatant violations of Bulgaria s Constitution and international
agreements occurred and continues to occur in full view of Bulgaria’s prosecutors and
criminal courts. this despite the April to June 2005 mass hunger strike by some 60
foreign prisoners who protested against the Respondent’s practices of discrimination
and arbitrariness when applying or refusing to apply Bulgarian national law to foreign
citizens in its prisons. This proceeding against the Respondent is the first attempt to
have Bulgaria’s courts end an injustice and violation of national law that Bulgaria’s
prosecutors have so far refused to even investigate.

The Applicant’s believe there is no argument that item 4 of ORDER LC 4-277 has
required officials of the Respondent to determine housing and employment rights
according to nationality and does therefore directly discriminates against foreign
citizens in Bulgaria’s prison.

The Applicant’s believe that the wording of item 4 in the Respondent’s ORDER
LC 4-277 is alone damning enough to prove the unlawful policy of direct
discrimination practiced by the Ministry for Justice for the Directorate Execution of
Punishments and as explained by its Director Mr. Peter Vassilev on 16.09.2004 when he
writes;
 “…единствената, която може да се предлага на лишените от свобода
чужди граждани, предвид т. 4 от Заповед № ЛС-04-277/04.10.2002 г. на
Министерство на правосъдието: "Лицата, които не са български
граждани и не са се установили на постоянно местоживеене в страната
изтърпяват наказание в затвора гр. София, където се настаняват
изолирано от останалите по местоживеене и месторабота" [see
Respondent’s letter № 8319 екз № 1 16.09.2004].

As such “isolation” according to the criteria of “nationality” and the determining of

other rights according to that same criteria as is required by the Respondent in item 4 of
ORDER LC 4- 277 is both a clear and irrefutable violation of Bulgaria’s national laws
and international agreements and must be rescinded immediately with full rights
restored retroactively to all foreign citizens in Bulgarian prisons.

FURTHERMORE, the Applicant’s believe that there is no argument that the second
requirement of item 4 of ORDER LC 4-277 and requiring foreign citizens to have a
“registered address in Bulgaria” is also a form of direct discrimination according to
property status and nationality. First because it is only the indigent and poverty stricken
Bulgarian citizens who do not have registered addresses and because of their property
status are denied equal rights and opportunity under law. And second because foreign
citizens in transit through Bulgaria at the time of his or her arrest clearly would have no
need of a registered address in Bulgaria. Finally, third and most significantly legal
rights under Bulgarian national laws are not to be determined by an individual having
or not having a registered address unless so specified in the law.

As such “isolation” because of the criteria of a “registered address” and the determining
of other rights according to this same criteria as is required by the Respondent in item 4
of ORDER LC 4- 277 is a clear and irrefutable violation of Bulgaria’s national laws
and international agreements and must be rescinded immediately with full rights
restored retroactively to all foreign citizens in Bulgarian prisons.

HOWEVER, the offensive character words of item 4 ORDER LC 4 – 277 alone

are not sufficient for this Court to grasp the far reaching and severe negative
impact of the discrimination that ORDER LC 4 – 277 has brought upon the lives and
legal rights of those foreign citizens deprived of their liberty in Bulgaria and refused
the possibility to serve the remainder of their sentences in their own countries.

As a result, to determine the extent of the discrimination and arbitrariness directly ad

indirectly the result of item 4 ORDER LC 4-277 requires the Applicants request the
Court obtain from the Respondent certain statistical evidence of its practices in
assigning housing, employment, education and social benefits from the Respondent’s
most recent data for the following;

A) FOR EACH PRISON OR HOSTEL ADMINISTERED BY THE

RESPONDENT AND AS SEPARATE TOTALS ACCORDING TO THE
DESIGNATED TYPE OF HOUSING [id est closed, semi-open and
intermediary or transitional type] THE RESPONDENT PROVIDE TO THE
COURT;
 1) With the total numbers of foreign citizens housed in each type of prison
and hostel.

2) The total numbers of foreigners to be sub-divided by the Respondent into the

numbers of foreign citizens at each separate facility that are;

i) accused or defendants under a criminal case;

ii) first time offenders with sentences in force, and;

iii) recidivist, those foreign citizens convicted for the commission of more than
one crime on the territory of Bulgaria and with sentences in force [see art.
158§11 for the Law for the Execution of Punishments and §4of the
13.09.2004 letter Deputy Minister Mario Dimitrov ];

3) Comparative figures2 for Bulgarian citizens at the same prison or hostel type;

Your Honors, these statistics will establish several facts.

1. That the Respondent is not observing exactly its own
ORDER [LC 4-277] and that foreign citizens are spread
through out Bulgaria’s prisons;
2. That the Respondent is only housing foreign citizens in
prison hostels of the Closed type, and is unwilling to provide
foreign citizens their legal right to prison housing according
1
Art. 158. (1) (amend. SG 28/82, SG 89/86) Recidivists in the sense of this law are:
a) sentenced two or more times to deprivation from liberty for intended crimes, for which
common penalty should not be determined according to art. 23 – 25 of the Penalty Code, if they
have served penalty deprivation from liberty;

b) the sentenced for crime, which is dangerous recidivism.

(2) No recidivists are the sentenced for crime, committed:

a) five or more years after serving previous penalty deprivation from liberty - if before that they
have been sentenced only once;

b) ten or more years after serving the last penalty deprivation from liberty - if before that they
have been sentenced two or more times.

(3) (new – SG 28/82, revoked SG 62/02).

(4) (prev. (3) – SG 28/82, amend. SG 89/86) Upon suspended sentence and liberation ahead of
time under probation the terms of para 2 shall start from the day, when the probation term has
expired.

2
Your Honors, the Plaintiffs seek to prove the practice of direct and indirect
discrimination (according to nationality) in the spheres of prison housing, equal opportunity
employment and education and access to benefits such as regular unsupervised leaves necessary
for a long term prisoner to maintain the social fabric of his or her family. To do this we must ask
the court to examine how the Respondent applies the same laws to the different classes of
prisoners.
 to their sentences and the Bulgarian national law legislated
under art. 8a §§2 and 33 and art. 12a §§ 1 and 34 of the Law
for the Execution of Punishments.

B) FOR EACH PRISON OR HOSTEL ADMINISTERED BY THE

RESPONDENT AND AS SEPARATE TOTALS ACCORDING TO THE
DESIGNATED TYPE OF HOUSING [id est closed, semi-open and
intermediary or transitional type] THE RESPONDENT PROVIDE TO THE
COURT;

1) Separate figures for the numbers of those foreign citizens that are (1) accused or
defendants (see art. 132e §15 Law for the Execution of Punishments), and for
those that are (2) with sentences in force and who;

3
Art. 8a. (new – SG 62/02) (1) The places for execution of the penalty imprisonment
shall be prisons and reformatories.

(2) At the prisons can be established prison hostels of closed, transitional and open type, and at
the reformatories - prison hostels of transitional type.

(3) At the prisons, the reformatories and the prison hostels the reforming impact shall e
implemented differentiated with regard to the different categories convicted.

4
Art. 12a. (new – SG 34/74, amend. SG 28/82, SG 21/90, SG 62/02) Those, convicted
for the first time to imprisonment up to five years for intended crimes and the convicted for
negligent crimes shall serve their penalty in prison hostels of open type.

(2) (revoked – SG 62/02).

(3) (new – SG 73/98, amend. SG 62/02) At the prison hostels of transition type can be
accommodated convicted with good conduct, served at least six months of the imposed penalty
in a prison or prison hostel of closed type and remainder of the penalty not bigger than five
years.

(4) (new – SG 73/98, amend. SG 62/02) The order for accommodation in prison hostels of
transition type shall be determined in the regulation for implementation of the law.

(5) (revoked – SG 62/02).

(6) (prev. (4) – SG 73/98) Those, deprived from liberty, who serve their penalty at prison hostels
under the previous paras, can be moved to a prison or prison hostel of closed type by the
Ministry of Justice only in the cases of art. 55.

5
Art. 132e. (new – SG 62/02) (1) The accused and the indictees in the prisons and the
reformatories can work if possible and upon explicit wish for this, expressed in writing.

(2) Their including in general education and professional – technical training shall be
encouraged.

(3) The accused and the indictees in the prisons and the reformatories can be punished or
rewarded by the order of chapter seven and eleven.
 i) have full time employment and at full minimum wage from the Respondent;

ii) have full time employments and at full minimum wage from a private
company;

2) The numbers of foreign citizens having sentences in force and who as of

December 31st 2005 are permitted by the Respondent to be employed outside
the grounds of a prison or hostel according to the provisions of art. 44 §§2, 3
and 46 of the Law for the Execution of Punishment.

3) Comparative figures for Bulgarian citizens at the same prison or hostel type;

Your Honors, this will establish several facts.

1. That the Respondent, by implementing ORDER LC 4-277
has unlawfully denied to foreign citizens their equal right to
access full time gainful employment [т.е. полезен труд];

(4) The reward home leave shall not be applied with regard to the accused and the indictees.

(5) With regard to the accused and the indictees, who rave, terrorise the others or perform
physical oppression, shall be applied strengthened protective measures by the order of chapter
seven “A”.

(6) When the accused and the indictees refuse to take food and this creates danger for their life
and health, upon prescription by the doctor shall be undertaken the necessary medical measures.

(7) The accused and the indictees shall be kept in permanently locked premises.

(8) In the prisons and the reformatories the accused and the indictees can be kept in premises,
which are locked only during the night.

6
Art. 44. (1) (amend. SG 62/02) The degree of isolation, the character of guard, the
checks, the furnishing of the dormitories, the participation in different kinds of labour and
collective forms of political – reforming work, the number of the parcels, visits the time of
walking and the sums for satisfying personal needs for the different regimes shall be determined
with the regulation of art. 160.

(2) (new – SG 34/74) For the deprived from liberty, who serve their penalty at prison hostels of
art. art. 12a, shall be provided alleviation.

(3) (new – SG 28/82) At the prison hostels of open type the deprived from liberty shall be under
alleviated supervision and work out of the region of the hostel without guard.

(4) (new – SG 28/82, amend. SG 62/02) At the prison hostels of transition type the deprived
from liberty shall be under alleviated supervision and guard. separate groups of them can be
sent to work out of the region of the hostel without guard.

(5) (new – SG 28/82) At the prisons and the prison hostels for recidivists the deprived from
liberty shall be put under hard supervision and guard and work only in the region of the
respective prison and prison hostel or at detached sites.
 2. That as a result of the Respondent’s intentional and
premeditated restrictions on employment available for
foreign citizens, the Respondent has violated Article 41§1 of
the Bulgarian CC and so has intentionally denied to foreign
citizens an equal possibly to reduce their sentences according
to Article 41§3 CC.
3. That by housing foreign citizens only in prison hostels of
the Closed type and segregating and isolating them from all
Bulgarians, the Respondent has de facto placed all foreign
citizens under one and the same regime for employment
and education as that designated for recidivists [see Art.
44 §5 Law for the Execution of Punishments]. This done by
the Respondent solely on account of the Applicants not being
citizens of Bulgarian.
4. That the placement of all foreign prisoners into one housing
facility, regardless of their crimes, sentences or regimes, and
placing all under one and the same physical restrictions and
psychological distress is a practice not consistent with the
national law in art. 42 item “a”7 of the Law for the Execution
of Punishments and the legal rights of individual offenders.
5. That the Respondent has thereby unlawfully denied to non-
Bulgarian citizens their legislated right to complete their
sentences in housing facilities designated by national law.
And insodoingso the Respondent indirectly discriminates
against foreign citizens by denying them equal access to
employment opportunities outside of a prison r hostel under
the conditions of art. 44 §§2, 3 and 4 of the Law for the
Execution of Punishment.

C) FOR EACH PRISON OR HOSTEL ADMINISTERED BY THE

RESPONDENT AND AS SEPARATE TOTALS ACCORDING TO THE
DESIGNATED TYPE OF HOUSING [id est closed, semi-open and
intermediary or transitional type] THE RESPONDENT PROVIDE TO THE
COURT;

7
Art. 42. The regime at the prisons and the reformatories shall assist the achievement of
the objectives of art. 2 by:
a) differentiated accommodation and isolation of the deprived from liberty depending on sex,
age, character of the committed crime, previous convictions and degree of public hazard;

b) establishing of the necessary order and discipline;

c) expedient distribution of the time during the day and night;

d) creating of appropriate living ambience;

e) determining the rights to visits, parcels and correspondence, disposable sums for personal
spending, disposable belongings etc.
 1) The number of foreign citizens enrolled by the Respondent in educational
programs or vocational training of any kind and consistent with the minimum
requirements for rehabilitation of persons of deprived of liberty in Bulgarian
according to the national law found in articles 66b, 68, 69 and 708 of the Law
for the Execution of Punishments;

2) The numbers of foreign citizens permitted by the Respondent to organize and

participate in “voluntary bodies” according to articles 71, 72 and 739 of the Law
for the Execution of Punishments.

8
Art. 66b. (new – SG 62/02) (1) At the prisons, the reformatories and the prison hostels
shall be applied programmes for group work with the deprived from liberty, assisting them in
adaptation to the conditions at the places for deprivation from liberty and in their preparation for
life in freedom.

(2)The programmes for group work shall be directed to:

1. motivation of lawful behaviour;

2. solving of problems and creating of skills for surmounting of difficulties;

3. mediation services of external organisations.

(3) The participation of the deprived from liberty in the programmes for group work shall be
voluntary.

(4) The programmes for group work shall be approved by the chief director of Chief directorate
“Execution of penalties”.

Art. 67. (revoked – SG 62/02).

Art. 68. (amend. SG 21/90) (1) (amend. SG 62/02) For increase of the education and for
professional training of the deprived from liberty at the prisons and the reformatories together
with the bodies of education and science education establishments shall be organised.

(2) (amend. SG 73/98) The education establishments of the previous para shall be opened and
closed by the Ministry of Education and Science upon proposal by the Ministry of Justice.

(3) The general education and the professional – technical training at the education
establishments shall be conducting without discontinuing work according to study plans and
programmes, approved by the Ministry of Education and Science. The pedagogic and the study
– methodical guidance and the control of the education shall be implemented by the Ministry of
Education and Science.

(4) (amend. SG 73/98) The professional – technical training shall be conducted also in the
courses without discontinuing work as well as with brigade and individual training. With a
permission of the Ministry of Justice courses with discontinuing work can be organised.

Art. 69. At the places for deprivation from liberty shall be created the necessary conditions for
theoretical and practical mastering of the speciality or the profession through ensuring of study
– material base, free of charge textbooks, tools, aids etc.

Aty. 70. (1) For finished education, as well as for acquired speciality and qualification to the
deprived from liberty shall be issued documents according to the generally established models
in the country.
 3) Comparative figures for Bulgarian citizens at the same prison or hostel type;

Your Honors, this will establish that Respondent’s ORDER № LC 4- 277, by creating
the “segregation and isolation” of foreign citizens from Bulgarian citizens has acted
denied to indirectly discriminate against foreign citizens and their equal right to
participate in educational or vocational retraining programs and in the voluntary prison
bodies organized to address the specific questions for the rehabilitation, social and
other needs of non-Bulgarian citizens also members of prison society.
AND FURTHERMORE that the Respondent has intentionally made no effort to
provide foreign citizens in it prisons or hostels a reasonable and equal alternative.

D) FOR EACH PRISON OR HOSTEL ADMINISTERED BY THE

RESPONDENT AND AS SEPARATE TOTALS ACCORDING TO THE
DESIGNATED TYPE OF HOUSING [id est closed, semi-open and
intermediary or transitional type] THE RESPONDENT PROVIDE TO THE
COURT;

1) Annual figures for each prison and hostel of the numbers of foreign citizens
since January 1st 1991 to December 31 2005 that according to the national law

(2) The deprived from liberty of the previous para shall be accommodated to work, which if
possible corresponds to the acquired speciality and qualification.

Art. 70a. (new – SG 73/98) (1) To the deprived from liberty shall be ensured opportunities to
satisfy religious needs by participation in religious services and ceremonies, as well as for use
of respective literature.

(2) The satisfaction of religious needs cannot breach the order at the places for deprivation from
liberty.

9
Art. 71. (amend. SG 28/82) (1) (amend. SG 73/98) The regime, the labour and the
reforming work in the prisons and the reformatories shall be conducted with active and
organised participation of the deprived from liberty.

(2) (amend. SG 62/02) For this purpose voluntary bodies shall be elected.

Art. 72. (amend. SG 73/98) The voluntary bodies shall have as objective to develop the
initiative of the convicted, to assist the reforming and the improvement and to assist the
administration in organising and conducting of the regime labour and reforming work.

Art. 73. The deprived from liberty can conduct meetings and other common events with
permission of the administration.
 in art.7410 §1 items “f”, “g” and “I” and art. 75§1, 2 and 3 11 of the Law for the
Execution of Punishments have been granted;

i) home leave from 3 to 5 days;

ii) home leave of 2 days monthly;

iii) day leave of up to 12 hours;

2) Comparative figures for Bulgarian citizens at the same prison or hostel type;

10
Art. 74. (1) For marked discipline, for significant labour achievements and for other
positive acts the deprived from liberty can be stimulated with the following rewards:

a) public praise;

b) (amend. SG 62/02) extraordinary visit or food parcel;

c) increase of the time for stay in the open air;

d) increase of the due under the regime sums for satisfying of personal needs up to 50% - for a
term of one month;

e) pecuniary or subject awards;

f) home leave – for a term of five days;

g) (new – SG 28/82, amend. SG 62/02) home leave up to two days monthly regardless of the
leave of item f) – for the deprived from liberty, accommodated at prison hostels of transition
type;

h) (new – SG 28/82, amend. SG 62/02) permission to be used the annual rest of art. 28 out of
the prison hostel – for the deprived from liberty, accommodated at prison hostels of open and
transition type;

i) leave up to 12 hours out of the place for deprivation from liberty for the deprived from liberty,
accommodated at prison hostels of open and transition type;

j) deleting or revoking of imposed disciplinary penalty.

(2) (new – SG 28/82) The deprived from liberty, accommodated at prison hostels of open type
shall have the right to home leave for two days monthly, regardless of the leave of para 1, item
f).

(3) (prev. (2), amend. SG 28/82) At extraordinary visit the deprived from liberty shall have the
right to receive extraordinary food parcel, and in the cases of para 1, items f), g), h) and para 2 –
increase of the sums for personal needs.

11
Art. 75. (1)The rewards of the previous Art. shall be given by the chief of the prison or
the reformatory, and these of items a) to d) inclusive – also by the chief of the reformatory.

(2) (amend. SG 73/98, SG 62/02) The reward of item f) shall be given for good behaviour with
written consent by the respective prosecutor after serving one year of the penalty. This reward
Your Honors, the foregoing statistical evidence will establish before the Court that while the
Respondent’s ORDER LC - 4 - 277 provides no specific mention of any direct discrimination requiring
prison directors to exclude foreign citizens for the any of the abovementioned rights to inter alia (1) access
full time employment in and outside of the prison or access to higher education or vocational training in or
outside the prison supervised under guard or unsupervised; (2) the organizing and participating in
voluntary bodies at prisons, and; (3) access to annual home leaves or 12 day passes to visit with family or
attend university.
HOWEVER, ORDER № LC 4- 277 has provided an excuse for prison directors and employees of the
Respondent to unreasonably and arbitrarily deny to foreign citizens I their case these and other rights or
possibilities available to Bulgarian citizens under the Law for the Execution of Punishments and the
Criminal Code.
IN FACT THESE STATISTICS WILL PROVE THE ALTERNATIVE TO BE TRUE, that officials of
the Respondent intentionally, and the Applicants believe some officials maliciously, are exercising their
official powers to deny to non-Bulgarian citizens any form of gainful employment or possibility to leave the
prison for a few hours or days at a time if that will result in their having contact with Bulgarian citizens
outside of the prison.
AND THAT AS A RESULT OF RESPONDENT’S ORDER № LC 4 – 277, and its instruction for
officials of the Respondent to “настаняват изолирано от останалите” anyone who is not a citizens of
Bulgaria has been perverted to mean foreign citizens are intrinsically “dangerous to Bulgarian citizens” and
so have no right to day leaved or furlough [see letter № 736 dated 26.01.2006 from the Ministry for Justice
Main Directorate Deputy Director Kostadinov and letter № 264 dated 19.01.2006 Director for the Sofia
Central Prison Mr. Dimitar Raichev].

Подадено днес, 07.02.2006 г.

Подписано от Майкъл Капустин

shall not be given to those under hard severe and special regime.

(3) (new – SG 34/74) To the deprived from liberty, who serve their penalty at prison hostels under art. 12a, the reward of
item f) shall be given for good behaviour and attitude to labour after serving, including the recognising of the working
days, at least three months of the term of the penalty.

(4) (prev. (3) – SG 34/74) The time, during which the deprived from liberty has been in home leave, shall be recognised
as serving the penalty.

(5) (new – SG 62/02) The leave of art. 74, para 1, items f), g) and h) and para 2 can be terminated by the respective
prosecutor or by the chief of the respective place for deprivation from liberty, about which the prosecutor shall be
immediately informed, when there are data, that there is danger the convicted to detract or to commit new crime.