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Michael Kapoustin
Citizen of Canada
Sofia Prison
The Minister for Foreign Affairs
Serbia and Montenegro
Belgrade, Serbia
Care of
EMBASSY OF SERBIA AND MONTENEGRO
17, Blackburn Avenue
Ottawa Ontario KIN 8A2 CANADA
APPLICATION
FOR ASSISTANCE
IN A COLLECTIVE COMPLAINT
under Rule 19 Rules of Procedure European Committee of Social Rights
PART VII
Collective Complaints Procedure
From Citizens of Serbia and Montenegro and other Non-Bulgarian Offenders
AGAINST
The Republic of Bulgaria
The Complaint alleges against the Republic of Bulgaria inter alia violations of the non-discrimination Preamble of
the European Social Charter and the rights of the individual and the family to free movement and social, legal and
economic protection when read with the Preamble. The Applicants are alleging a widespread discrimination against
non-Bulgarian Offenders both in law and in practice in the fields of Bulgarian criminal law, observing of treaty bona
fides, and right to the movement of persons, [prison] housing, education and employment while deprived of liberty in
Bulgaria. The Republic of Bulgaria refusing to observe its positive obligation as a Council of Europe member in
guaranteeing the right of equal access and fair application of Bulgaria’s national laws and international agreements to
those Offenders who are not citizens of Bulgaria and also having a property status insufficient to settle financial
obligations in Bulgaria. The Applicant(s) believing that the democratically elected governments of the Council of
Europe should not tolerate another member state, the Republic of Bulgaria, relying on the criteria of [non-Bulgarian]
nationality and property status as a casus for segregating and isolating citizens of other Council of Europe member
states (the foreign “Offenders”) from legal rights and social protections as are protected by international treaty law.
The Applicant here, one Nikolai Vasich, a citizen Serbia and Montenegro, of belongs to that group of foreign
Offenders suffering and continuing to suffer the injustice and indignity of physical segregation and legal isolation
from the protections of law. And this only because as a citizen of Serbia and Montenegro and having a property
status unacceptable to the Government of Bulgaria.
In the Republic of Bulgaria refusing to recognise physical segregation and legal isolation of foreign Offenders as a
form of discrimination it has committed a breach of international law and it is in violation of its positive obligations
to the Council of Europe. As a result the Applicant(s) turn to the other Council member states and the Council of
Europe Committee for Social Right to ascertain if such a refusal is consistent with the Council’s Charter and other
international laws.
The posited question is the following. Does the Council of Europe endorse the Bulgarian government’s practice of an
Offender’s nationality, property and public status creating legal rights different from and less than those other
offenders who citizens of Bulgaria when such rights are governed by the same national laws and international treaties
and notwithstanding that neither Bulgarian national law or international treaty makes such distinction when
determining the positive obligations and negatives restrictions agreed to by Member States for their guaranteeing
equal individual rights?
Michael Kapoustin
Citizen of Canada
10th Prisoners Group
Sofia Central Penitentiary
Sofia Bulgaria
M. Kapoustin Page 4 6/30/2005
Table of Contents
Request to the Minister for Foreign Affairs............................................................................. 6
Conclusions ........................................................................................................................... 27
The Minister for Foreign Affairs for the Government of Serbia and
Montenegro is petitioned to consider submitting for the Applicants a
Collective Complaint against the Republic of Bulgaria before the Council of
Europe Committee of Social Rights (hereinafter the “Committee”) and the
European Union’s Commissioner for Justice and Human Rights (hereinafter
the “Commissioner”).
If the Government of Serbia and Montenegro refuses to act form its citizen
Mr. Vasich and instead refers this Application to an NGO, then that NGO must
be registered and qualified for the submitting of such complaints before the
Council of Europe.
First from the application, legal interpretation and practice surrounding what is
a cabinet minister’s [Minister for Justice] decree imposing an Order for the
[physical] segregation and [legal] isolation from Bulgarian laws those
Offenders who are not citizens or residents of Bulgaria. Physical segregation
and isolation from national law according to nationality, property or public
status is expressly forbidden by the Bulgarian Constitution and other national
laws, however it continues as an official Government of Bulgaria policy in
force prior to the present Bulgarian Constitution’s non-discrimination
provision;
No Factual Dispute
When replying to the Applicants’ complaints, the Bulgarian Minister for
Justice has admitted to the existence of a Government of Bulgaria policy
and practice of affecting only the rights and obligations of foreign
Offenders.
That rights and obligations affected by the nationality, property or public
status of an Offender are in the areas of his equal access to certain articles of
Bulgarian national law, judicial procedures and international treaties.
The Bulgarian Minister for Justice confirms in his letters that nationality,
property and public status of an Offender will determine his legal rights and
obligations and also the obligations of the Bulgarian State’s to that
Offender.
Bulgaria’s Deputy Minister for Justice did not dispute the Applicants’
allegations of their being “segregated” from housing and employment and
“isolated” from social and other remedial opportunities a part of the
Bulgarian Law on the Executions of Punishments.
Therefore no factual dispute exists between the Applicants and the
Government of the Republic of Bulgaria as concerns a policy and practice
of discrimination affecting only the rights and obligations of foreign
citizens, Offenders, in the Republic of Bulgaria.
There appears no [reasonable] explanation from the Deputy Minister for
Justice as to why it is necessary for the Government of Bulgaria to impose a
policy of segregation and isolation according to nationality.
The Deputy Minister for Justice RB identifies in his letter that the Bulgarian
Parliament has not legislated a positive obligation for applying the Law for
the Execution of Punishments to foreign Offenders in the same way as it is
applied to Offenders who are citizens of Bulgaria.
When questioned about this in the field or housing and the harshness in the
type of imprisonment foreign Offenders must endure, the Deputy Bulgarian
Minister for Justice RB writes that the national “law gives no reason for the
relocation [transfer] of foreign citizens” by the Ministry for Justice – Main
Directorate for the Execution of Punishments RB “to prison communities of
the open and transitional type” (“няма законова основание за
преместване на чуждите граждани в затворнически общежития
от открит и преходен тип”).
No explanation is given Deputy Bulgarian Minister for Justice RB, a former
criminal court justice, of why the Bulgarian Law for the Execution of
Punishments is according to him required to have separate provisions
and different application for to Offenders who are not citizens of
Bulgaria.
Conspicuously absent is an explanation from the Deputy Bulgarian Minister
for Justice RB of why the other parts of the Bulgarian Law for the Execution
of Punishments continue to apply to foreign Offenders when there is absent
from them a provision for applying the law to foreign citizens.
First, the Government for the Republic of Bulgaria Ministry for Justice
refuses to provide gainful employment to [foreign] Offenders [see above
“segregation and isolation” of foreign Offenders from “housing and places
of labour”]; and
Second because foreign Offenders once released, are to be deported from
the Republic of Bulgaria and denied the right of return.
And equally absurd is that a foreign Offenders has “not been rehabilitated”
until he pays the Republic of Bulgaria the fine and court costs imposed with
the criminal sentence against them, ergo nationality and property status of
the Offender are to determine his eligibility for parole.
Bulgarian Discrimination is Systematic and Systemic
Proceeding from the above facts and the written admissions of direct
discriminations made by agencies of the Republic of Bulgaria, the Applicants
have reasonably concluded a systematic policy and systemic wide practice of
discrimination in the abusing of foreign citizens imprisoned in Bulgaria to be
the following.
That the Ministry for Justice, Ministry for Foreign Affairs and Prosecutors
General for the Republic of Bulgaria are each admitting and insisting before
Council of Europe member states and Canada that;
That according to Bulgaria it is reasonable for citizens of other member states
and Canada to be segregated and isolated from Bulgarian national laws and
social protections solely because they are not citizens of Bulgaria;
That according to Bulgaria it is reasonable for citizens of other member states
and Canada to have the affective term of their imprisonment revised upward by
employees of the Ministry for Justice, the District Prosecutor and a District
Judge members of a “secret tribunal” [prison Committees according to Art. 17
of the Law for the Execution of Punishments]. It reasonable and lawful for
Offenders citizens of other member states and Canada if having unpaid debts
M. Kapoustin Page 17 6/30/2005
That according to Bulgaria it is reasonable and “right” the Ministry for Justice
RB to keep “secret” the names, facts, grounds and decisions of a “secret
tribunal” formed under Article 17 Bulgarian Law on the Execution of
Punishments. The Ministry for Justice protecting its prison employees and
officials, prosecutors and judges from accountability and the possibility of legal
recourse or use of judicial remedy by an Offender alleging to be the victim of
malfeasance [inter alia discrimination, corruption, abuse of office, defamation,
conflict of interest et al] or misfeasance by an official;
That according to Bulgaria it is reasonable for citizens of other member states
and Canada to remain incarcerated in Bulgaria solely as a result of their having
a property and public status such that the Government of Bulgaria is unwilling
to permit their departure from Bulgaria for transfer under international
conventions or allow for their deportation one having attained the right of
probation [parole];
That according to Bulgaria it is reasonable for citizens of other member states
and Canada to continue to be imprisonment in Bulgaria as a legitimate
Bulgarian State tool of coercion for the purpose of collecting of money owed to
either the Bulgarian State or a Bulgarian citizen [see the previously cited
28.07.2004 practice DECISION Reg. № 3679/04; 2.12.2004 practice
DECISION Reg. № 42160/04; December 11th, 2004 DECISION № 28730/04
and others of the Supreme Cassation Prosecutors Office];
Prevailing Bulgaria law makes a mockery of the
Ministry for Justice.
According to Bulgarian national law Officials and employees of the Ministry
for Justice RB Sofia prison participating in the Committee are public servants.
More damming is the law according to same Article 17 of the Law on the
Execution of Punishments prison “…commissions [committee are], comprised
by: (1) the chairman – the chief of the prison or reformatory, and members –
judge from the county court, deputy chiefs, representative of the supervision
commission and the psychologist of the prison or the reformatory; (2) the
inspectors for social activity and reforming work, when the situation with the
prisoners in their group is considered; ….(4) At the sessions of the commission
a prosecutor from the regional prosecutor’s office shall be present” and their
identities intended to be public.
M. Kapoustin Page 18 6/30/2005
And according to Article 415§1 abstract (2) of the Bulgarian Criminal Code of
Procedure2 the prison Committee formed under Article 17 of the Law on the
Execution of Punishments this prison Committee have a public function of
proposing Offenders to the City Court for possible probation (parole).
Nowhere is there a provision in the national law for the Minister for Justice RB
to withhold [keep secret] the identities of its employees at the Ministry of
Justice – Main Directorate for the Execution of Punishments Sofia Central
Penitentiary.
Equally as true is the fact of no provision in the abovecited law allowing the
Minister for Justice RB to withhold [keep secret] the actions taken by the
Committee as can be determined from its Minutes or the legal and factual
grounds for decisions affecting legal rights of foreign citizens.
Bulgarian national law appears to consider prison Committees formed
according Article 17 of the Law on the Execution of Punishments as
administrative tribunals and therefore subject to directions and oversight of the
Ministry for Justice RB and the courts,
Any administrative or quasi judicial action or decision taken by this Committee
or its members and affecting legal rights and obligations of a particular
Offender must be open to view by the affected party.
Any Rulings or Decisions taken by prosecutors and judges participating in these
Committees are required by law to be subject to appeal or judicial control and
public scrutiny for correctness, truthfulness, reasonableness and lawfulness.
The Committee itself has no independent judicial authority or function. It and
its membership cannot be considered impartial since its members are Ministry
of Justice officials and prison employees subject and answerable to the orders of
their immediate supervisors.
In the cases of foreign Offenders the proposal to the City Court by either the
Committee or Sofia Prosecutors Office are made on the occurrence of a foreign
Offender having formally satisfying the requirements of Article 70§1 CC id est
complete half or more of his criminal sentence.
2
Art. 415. (1) Proposals for conditional release under Articles 70 and 71 of the
Penal Code may make:
1. The regional prosecutor, respectively the military prosecutor, in the place of
execution of the punishment;
2. The Committee under Art. 17 of the Execution of Punishments Act.
M. Kapoustin Page 19 6/30/2005
3
Относно общаване практиката на съдилищата по условното предсрочно
освобождаване от изтърпяване на наказание.
Also the Minister for Justice RB refuses to provide materials on how these
“secret tribunals” have conduced meetings, on what documents, other facts or
law they have relied on for their conclusions.
It is a result of this policy and practice of “secrecy” that the Applicants now
seek to allege before the Committee that Bulgarian prison administrators,
district prosecutors and judges who participate in these “secret tribunals” are
acting inscienter to collectively impose a harsher punishment and prison term
on all Offenders who are not citizens of Bulgaria, have unpaid debts and public
reputations.
From the written explanations of the Minister for Justice RB it appears to be
irrefutable that these “secret” Committees have a “quasi-judicial” function as
prison “tribunals”. Particularly when one considers the presence and
participation of a district prosecutor and district judge at these Committees
whose identities are kept “secret” by the Minister for Justice from the foreign
Offenders and their embassies.
The Constitution of the Republic of Bulgaria and other national laws do not
provide for the formation of “secret tribunals” having a judicial or quasi-
judicial jurisdiction and allowing for the secret alternation of a criminal
sentence or the secret imposition of a sanction extending the term of an
Offender’s imprisonment. Therefore, according to law, the Committees formed
according to Art. 17 of the Law on the Execution of Punishments should not
be able to alter upward criminal sentences or impose additional criminal
sanctions or harsher punishments.
However, the facts and practices speak to the alternative. Committee members
and the district prosecutor succeed in altering criminal sentenced indirectly,
first by maintaining the secrecy of the Committee’s members; second by
Committee sessions being conducted under rules of secrecy; third by not being
required to provide written reasons for their decisions and fourth by negative
decisions taken against the [foreign] Offender not being subject to any form of
judicial control, review or remedy [id est only decisions positively affecting the
legal rights of an Offender can be subjected to judicial control [Art. 415 and the
following CCP]. Malfeasances, misfeasances, other misconducts or errors o law
or omission by the Committee or its members are not subjected to any
administrative or judicial control.
At the time of this Application there are 29 of the 102 Applicants who have
completed the “affective term” [more than half] of their criminal sentences.
And who according to Bulgarian national law [Article 70 §1 CC] have acquired
the legal right to a judicial review for alteration of the remaining part of their
sentence to probation [parole].
M. Kapoustin Page 21 6/30/2005
4
Art. 70. (1) (Amend., SG 153/98) The court can rule a probationary release ahead of
term for the remaining part of the punishment of imprisonment regarding a convicted with
exemplary conduct and honest attitude to the work, and who has proven his reformation and
has served actually no less than half of the imposed punishment.
M. Kapoustin Page 22 6/30/2005
between the “reforming influence” of the “penalty fine” and the criteria for
a [foreign] Offender’s satisfying the rehabilitation criteria of Article 70§1
CC to be inseparable.
Applicant Reasons
What flows naturally from this reasoning of Bulgaria’s Prosecutors General
proves to be the following.
That official Government of Bulgaria policy and practice allows for property
status [of a foreign Offender] to determine in advance what are his legal right
when seeking access to a judicial review of his parole.
Bulgarian Prosecutors insisting they are legally bound to refuse applications for
judicial review of parole [Article 415 and the following procedures of the
Bulgarian Criminal Code of Procedure] when a foreign Offender has any
outstanding private debts, notwithstanding evidence to the contrary or the fact
of the State of Bulgaria having or no evidence of the Offender or his family
withholding information on their property, income or other resources.
The Persecutors General for the Republic of Bulgaria has refused each
of the foreign Offenders requests for transfer under the Convention.
The Persecutors General for the Republic of Bulgaria doing so solely
according to the criteria of a [foreign] Offender’s property status, or at
least not until the families of the Offenders pay state imposed fines.
Something the Persecutors General for the Republic of Bulgaria knows
or should know to be impossible for the Offender or his family.
Offenders have recognized their property status to be in most cases (except
that of the Canadian citizen Kapoustin) as the sole obstruction to their
transfer under the Convention.
As a result, each of the 63 [out of 93 foreign] Offenders seeking transfer
have at one time or another petitioned the Minister for Finance for the
Republic of Bulgaria to declare their individual fines as “uncollectible” and
so clear the way for either of the following.
(1) The transferring of the collection by the Persecutors General for the
Republic of Bulgaria to the administrating State under the European
Convention on the Validity of Criminal Sentences, or;
families who are not Bulgarian citizens, and have a certain property and social
status.
In response to individual complaints, the Ministry for Justice, the Prosecutors
General and Supreme Courts of Cassation for the RB admit to the complained
of policy and practice id est the determination of rights and obligations
according to nationality, property or social status of the Offender.
However, each of the aforesaid have responded that restricting [segregation and
isolation from] legal rights available to foreign Offenders to be Government
policy and practice not within the ambit of the recognized categories of
discrimination [see inter alia Decision № 101/November 11 2004 Supreme
Cassation Court RB Case № 156/2004 page 2; Decision № 71/July 7 2004
Supreme Cassation Court RB Case № 148/2004 Private Appeal of the
Applicant Kapoustin v. Ministry for Justice RB – discrimination according to
property and social status; a l'impossible nul n'est tenu5].
5
No one is bound by what is impossible
M. Kapoustin Page 27 6/30/2005
Final Remedy
The Government of Bulgaria and its national courts persist in refusing to
acknowledge any harm or injury to the affected group from the complained of
policies and practices of direct and indirect discriminations.
Conclusions
The policies and practices identified are inconsistent with the Charter and
Bulgarian national law. Relying on nationality, property and social status as
providing a reason to derogate from valid social, economic and legal protections
M. Kapoustin Page 28 6/30/2005
is inconsistent with Article 16 of the Charter when read with the non-
discrimination clause of the Charter preamble.
Also, the Minister for Justice and Prosecutors General for the Republic of
Bulgaria have exceeded their constitutional jurisdiction when “creating law” in
policies or practices for “segregation and isolation” according to nationality,
property and social status. Policies and practices expressly prohibited by
national law [see as authority Article 4 of the Law for Protection against
Discrimination].
6
(law) thing speaks for itself
7
Article 3
Every member of the Council of Europe must accept the principles of the rule of law
and of the enjoyment by all persons within its jurisdiction of human rights and
fundamental freedoms, and collaborate sincerely and effectively in the realization of
the aim of the Council as specified in Chapter
M. Kapoustin Page 29 6/30/2005
(6) Right of the Family – Positive Obligation id est that the Republic of
Bulgaria is not observing its positive obligation to guarantee to
citizens of Serbia and Montenegro, other European States and Canada
M. Kapoustin Page 31 6/30/2005
The Applicants are concerned that [foreign] Offenders who are “well
known” to the Bulgarian media and whose families have insufficient
resources to settle contractual or debt obligations to Bulgarian citizens
or the State are being routinely denied access to the Convention and
their requests for transfer;
(7) Right of the Family – Negative Restriction id est that the Republic of
Bulgaria is not observing the negative restrictions against unequal
access and negative bias in the application of Bulgaria national laws
[the Criminal Code] to convicted citizens of Serbia and Montenegro
other European States and Canada and having completed half or more of
their sentence in Bulgaria.
The Applicants are concerned that they are routinely denied social
rights and legal protections and procedures otherwise made
available to Bulgarian first time offenders having served better than
half of their criminal sentence,
Bulgarian national law requires that every two months there be an
administrative review of an Offender’s right to unsupervised home leave
or a judicial review of that Offenders possible parole. Bulgaria’s
Criminal Code and correctional law [Law for the Execution of
Punishments] thereby acting to preserve the necessary conditions for
the full development of a family [Article 16 Charter] and the
reintegration into society of a Bulgarian Offender.
According to Bulgarian national law unsupervised home leave or
judicial review of parole is a positive obligation of the State in cases
where Offenders have formally served half or more of their sentence and
M. Kapoustin Page 32 6/30/2005
Michael Kapoustin
Citizen of Canada
10th Prisoners Group
Sofia Central Penitentiary
Sofia Bulgaria