До: ВЪРХОВЕН АДМИНИСТРАТИВЕН СЪД

ПЕТО ОТДЕЛЕНИЕ

отн. адм. Дело. № 7380/2004 на ВАС

Срещу: Министерство на Правосъдието

Ул. "Славянска" № 1
София1, 1000

От: Майкъл Капустин

Канадски гражданин
Съдебен адрес
Централен софийски затвор
10-та група
София, България

ДОПЪЛНЕНИЕ НА ДОКАЗАТЕЛСТВО
и
РАЗШИРЯВАНЕ НА ЖАЛБА
ОТ 08.01.2004г.
ОСНОВАНИЕ ЗАКОН ЗА ЗАЩИТА СРЕЩУ
ДИСКРИМИНАЦИЯТА

Уважаеми Съдии,

Уважаема Госпожо Председател,

На основание чл.5 от ГПК, като страна канадски гражданин лишен от свобода, Аз

представям на Ангелски език допълнително към моите Иск. Това че с преведи от
преводачката ми, Госпожа Мариана Радулова и депозирано с ВАС.

Подадено днес, сряда, 16 Май 2007 г.

От Майкъл Капустин

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

A. Additional Evidence

The Court is requested to accept into evidence the following true copies of original letters
issued by the Helsinki Committee of Bulgaria to the Plaintiff Kapoustin;

2004.12.29_7830.04_ SupAC 5th Dept_Addenum_Evidence_ENG.doc

1. A December 7th 2004 letter having №. “П-936, the Helsinki Committee of
Bulgaria responding to a request for confirmation of the facts as alleged in the
Plaintiff’s October 2004 Complaint to the Supreme Administrative Court for the
Republic of Bulgaria.

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

Plaintiff Kapoustin that according to its independent international observes, those
Offenders who are not citizens of Bulgaria are indeed the victims of a policy and
practice of direct and indirect discrimination according to the criteria of
nationality. The Ministry for Justice and Office of the Prosecutors General for the
Republic of Bulgaria affording [denying] fewer legal rights and social protections
to those Offenders who are not citizens of Bulgaria and are legally eligible for
better prison housing, employment, education, unsupervised leave, medical leave,
probation [as of January 1st 2005], relief from state taxes to defend or prosecute
civil actions and the possibilities for transfer [Convention on the Transfer of
Sentenced Persons] or release on parole.

The Plaintiff Kapoustin and all other foreign Offenders serving their sentences in
Bulgarian prisons have a lesser legal status before officials of the Ministry of
Justice, Office of the Prosecutors General and the Sofia District Courts [civil,
criminal and administrative] than those Offenders who are citizens of Bulgaria
and serving their sentences in Bulgaria or other contracting member states to the
Council of Europe and Convention on the Transfer of Sentenced Persons.

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

2. The August 9th 2002 letter issued by the Helsinki Committee of Bulgaria in
response to a request by the Plaintiff Kapoustin for an independent investigation
of his allegation’s that there exists an official policy and practice of direct and
indirect discrimination. The Ministry of Justice – Main Directorate for the
Execution of Punishments, prison Officials and Sofia district prosecutors
determining the application of Bulgarian national laws and international treaties
according to the criteria of an Offender’s nationality and the property status of his
family. And doing so notwithstanding that the relevant and applicable national
laws determining rights and obligations id est the Criminal Code, Criminal Code
of Procedure, Civil Code of Procedure and the Law for the Execution of
Punishments have no provisions for a different application of their articles
according to the nationality or property status of a criminal Offender.

This letter confirms to the Plaintiff Kapoustin, and therefore also to this Court,
that there exists an earlier and independent investigation of the discriminations as
conducted by the Helsinki Committee id est direct discrimination according to the
criteria of nationality.

2004.12.29_7830.04_ SupAC 5th Dept_Addenum_Evidence_ENG.doc

B. New Allegation – Discrimination according to Property Status

3. The Plaintiff Kapoustin requests the inclusion of an addition cause of action under
Supreme Administrative Case № 7380/2004.

Grounds for the new cause of action are to be found in Article 4 of the Law of
Protections against Discrimination id est the property status of foreign
Offenders and their families is relied on as an administrative criteria for the
determining of legal rights and social protection under Bulgarian national laws
and international agreements.

It is complained that the Ministry for Justice and Prosecutors General for the
Bulgarian have instituted an administrative policy and practice directly
discriminating against [foreign] Offender’s according to his and his family’s
property status [wealth].

Discrimination according to the criteria of nationality and property status is

administrative policy of the Ministry for Justice – Main Directorate for the
Execution of Punishments Sofia and the Prosecutors General for the Republic of
Bulgaria in the fields of national law when determining legal rights, obligations
and opportunities under inter alia Article 70 §1 of the Bulgarian Criminal Code;
Section I Article 415 [and the following] and Section III Article 442 [and the
following] of the Bulgarian Criminal Code of Procedure, and; Ministry for
Justice – Sofia District Court Civil and Administrative Departments under Article
63b § 1 of the Civil Code of Procedure .

The Supreme Cassation Prosecutors Office for the Republic of Bulgarian inter
alio Prosecutor B. Toshev [„Б. Тошев”] writing on behalf of the Prosecutors
General confirmed in writing the existence of an official administrative policy
and practice for discrimination according to an Offender’s property status. In
letter to different Offenders, Bulgarian Prosecutor B. Toshev [„Б. Тошев”] wrote
that property status [wealth] of a [foreign] Offender’s [and his family] will
ultimately determine the legal right to a judicial review of parole or to
transfer under the European Convention in the Transfer of Sentenced Persons.

According to Prosecutor B. Toshev [„Б. Тошев”] and other Bulgarian

prosecutors, the Prosecutors General for the Republic of Bulgaria has determined
that those legal procedures available to Offenders for the judicial assessment
of parole will be determined for Offenders who are not citizens of Bulgarian
according to their property status. A foreign Offender’s eligibility for parole or
for transfer under the Convention is to determined by the Ministry for Justice and
Prosecutors General as meaning only those foreign Offenders having sufficient
property or cash to entitle them to a procedure of national and international law.

2004.12.29_7830.04_ SupAC 5th Dept_Addenum_Evidence_ENG.doc

 According to Prosecutor B. Toshev [„Б. Тошев”] those foreign Offenders who
have sufficient cash [to pay the state of Bulgaria] will be allowed access to
Bulgarian courts and to procedures under international treaties.

According to Prosecutor B. Toshev [„Б. Тошев”] it is official policy and practice

for those foreign Offenders who do not meet the property status demanded by the
district prosecutors to be administratively refused their legal right to a judicial
procedure [Article 415 et al and Article 442 et al] under the Bulgarian Criminal
Code of Procedure by both the district prosecutors and the Ministry for Justice –
Main Directorate for the Execution of Punishments – Sofia Central Penitentiary
Administrative Commission formed under Article 17 of the Law for the
Execution of Punishments.

The above is not consistent with international or national law.

ENACTMENT № 7 from 27.06.1975 Of The Plenum Of The [Bulgarian]

Supreme Court Criminal Division (Постановление № 7 От 27. Vi. 1975 г.. на
Пленума на ВС)1 provides grounds for the Plaintiff Kapoustin’s allegations
that administrative decisions by the Ministry for Justice – Main Directorate for
1
Относно общаване практиката на съдилищата по условното предсрочно
освобождаване от изтърпяване на наказание.
С цел да се подобри работата на съдилищата по условното предсрочно
освобождаване Пленумът на Върховния съд.
ПОСТАНОВИ:
1. Обръща внимание на съдилищата да повишат активността си при решаването на
въпроса за условното предсрочно освобождаване, като изискват от ръководствата на затворите
сведенията за предлаганите за условно предсрочно освобождаване лица да съдържат
изчерпателни данни относно законните предпоставки :
а) …
2. …
3. …
4. Условно предсрочно освобождаване на изтърпяващ наказание лишаване от
свобода е допустимо и когато той не работи поради нетрудоспособност, щом като е изтърпял
изискуемата част от наказанието и е показал примерно поведение, независимо че изискването
за честно отношение към труда е дадено кумулативно с изискването за примерно поведение.
Щом като осъденият поради независещи от него причини не може да полага
общественополезен труд и по този начин да покаже своето честно отношение към труда, а с
примерното си поведение е дал доказателства, че се е поправил, може и следва да бъде
условно предсрочно освободен.
5. При решаване въпроса за основанията за условно предсрочно освобождаване
съдът не може да се позовава на обстоятелствата по чл. 54 и 55 НК, както и на
квалифициращите деянието признаци, които се вземат пред вид при постановяването на
присъдата Чл.70 НК изисква осъденият през време изтърпяването на наказанието да е дал
доказателства чрез примерно поведение и честно отношение към труда, че се е поправил.
6. …
7. …
8. …
9. …
10. …

2004.12.29_7830.04_ SupAC 5th Dept_Addenum_Evidence_ENG.doc

 the Execution of Punishments Sofia Penitentiary Commission according to Article
17 of the Law on the Execution of Punishments and the Sofia District Prosecutors
according to Article 70 §1 CC denying to foreign Offenders their access to the
legal procedures of Article 415 CCP as inconsistent with national law. Offenders,
even those who are not citizens of Bulgaria and whose property status cannot
satisfy the demands of the Ministry of Justice and SCPO, are still entitled to the
same judicial procedures, legal rights and social protections made available to
citizens of Bulgaria

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

procedure otherwise available under the national law cannot be lawfully
determined by the wealth or poverty of an individual. To so do inconsistent with
the principles of equity as it would give rights only to the wealth and deny the
same rights to the poor.

C. Additional Facts

Proceeding from the above, the Plaintiff Kapoustin has alleged direct and indirect
discrimination the result of administrative orders, policies and practices of the
Ministry for Justice Republic of Bulgaria inter alia „Заповед № ЛС – 04 –
277/04.10.2002г. на Министъра на правосъдието” among others.

Furthermore, the Plaintiff Kapoustin has made an additional allegation of direct and
indirect discrimination the result of administrative orders, policies and practices of
the Minister for Justice Republic of Bulgaria and the Prosecutors General for the
Republic of Bulgaria. They having determined in their official capacity that nationally
and property status should determine an Offender’s access to legal rights and procedures
found in the Bulgarian Criminal Code of Procedure and the Convention on the Transfer
of Sentenced Persons.

These discriminations as alleged by the Plaintiff Kapoustin before the Supreme

Administrative Court affects the legal rights and social protections of all foreign citizens
deprived of their liberty in the Republic of Bulgaria and serving criminal sentences here,
they do not only affect the Plaintiff Kapoustin.

As a result, the Plaintiff Kapoustin submits the following statistical data and asks it
be accepted into evidence.

These statistics are significant to the Plaintiff Kapoustin and others proving the
complained of discriminations to be organized as official polices and practices of the
Ministry for Justice and Prosecutors General of the Republic of Bulgaria.

2004.12.29_7830.04_ SupAC 5th Dept_Addenum_Evidence_ENG.doc

The statistics are necessary to proving the complained of discriminations as being
systematically implemented by the Ministry for Justice – Main Directorate for the
Execution of Punishments Sofia and Sofia District Prosecutors Office and to proving an
unlawful derogation of the legal rights and social protections of all foreign Offenders in
Bulgaria’s Sofia Central Penitentiary.

Proof of this systematic abuse of legal rights and social protections can be found in
the following statistics.

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

4. 38 Individuals are affected by Direct Discrimination According to

Nationality – in the field of correctional law on prison Housing

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

intermediate types solely according to the criteria of their nationality. This
notwithstanding the law requires their relocations if having five (5) years or less
remaining to their sentence.

5. 23 Individuals Affected Direct Discrimination According to Nationality – in

the field of the criminal and correction law on Probation

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

Justice that they are not eligible for probationary release solely according to the criteria
of their nationality, and this notwithstanding the Offender has three (3) years or less
remaining to their sentence and having the legal right to probationary release on
January 1st 2005. Furthermore, the Sofia prison administration either confused or
unwilling to clarify on how this new law will be applied to first time Offenders who are
already sentenced and incarcerated but have a sentence of three (3) years or less or to
those Offenders having 3 years or less remaining from a larger sentence. However, the
Sofia prison administration is unequivocal in its insistence that this law will not be
applied to non-Bulgarians.

6. 63 Individuals Affected - Direct Discrimination According to Property Status

in the field of treaty law, Transfer

Non-Bulgarian Offenders having been refused requests for transfer under the European
Convention for the Transfer of Sentenced Persons solely according to the criteria of
their property status in Bulgaria.

2004.12.29_7830.04_ SupAC 5th Dept_Addenum_Evidence_ENG.doc

7. 29 Individuals Affected Indirect Discrimination according to Nationality and
direct discrimination according to Property Status in the field of criminal
law concerning eligibility for Parole.

Non-Bulgarian Offenders are refused judicial review of their legal status under the
procedures of Art. 415 and the following of the Criminal Code of Procedure solely
according to the criteria of their nationality and property status, and this not
withstanding the [Foreign] Offender having satisfied all the requirements of Article 70
sect. 1 of the Criminal Code.

D. Additional Request

That the Court Order the Ministry for Justice to confirm to the Court the
aforementioned statistical data as true.

That the Court request from the Bulgarian Helsinki Committee a true copy
of its September 2002 report.

That the Court confirms accepting the above into evidence.

Respectfully
30.12.2004 г.
Michael Kapoustin

2004.12.29_7830.04_ SupAC 5th Dept_Addenum_Evidence_ENG.doc

2004.12.29_7830.04_ SupAC 5th Dept_Addenum_Evidence_ENG.doc
2004.12.29_7830.04_ SupAC 5th Dept_Addenum_Evidence_ENG.doc