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The Bulgarian Agency for State Takings has jurisdiction only in Bulgaria. It therefore
has no policy or practice for collecting debts outside of Bulgaria. The Prosecutor
and the Prison are no legally competent to collect the fines or court costs of
Albanian citizens and are not permitted by law to attempt to coerce this money
by denying citizens of Albania their legal rights.
That said, it is a fact that such coercion exists [see below section on transfers
and parole]
Officials at the Agency for State Takings [public executors] routinely refuse any
attempt at collecting money owned the Bulgarian State from non-resident Albanian
[foreign] citizens having no property or bank accounts in Bulgaria. The First
Secretary should remember that the cars and trucks of his citizens have also
been confiscated for the benefit of the Bulgarian State.
Agency Officials in fact refuse to do anything at all except issue letters that can be
paraphrased as follows “the Albanian citizen has no property or bank accounts
in Bulgaria and it is therefore impossible to end the proceedings [for
collection] against the Albanian citizens”. This oxymoron is an objective
manifestation of the unreasonable unwillingness for Officials for the Bulgarian
Agency for State Takings to issue a decision that writes, to paraphrase “the amount
is uncollectible, we therefore end the proceedings against the Albanian Citizen
according to Article 187§4 of the Bulgarian Tax Procedure Code” [see below].
From the facts and years of correspondence it becomes obvious that unless
diplomatic or legal pressure is brought to bear on Bulgaria’s Government Minister for
Finance - Agency for State Takings – that it will be impossible otherwise for
imprisoned citizens of Albania to force Agency Officials to meet their obligations to
Albanian citizens id est to issue a Ruling on the “uncollectability” of the fine.
When Albanian citizens request transfer under the Convention for the Transfer of
Sentenced Persons, the Office of Bulgaria’s Prosecutors General – Filchev –
Supreme Prosecutor for the Republic of Bulgaria, refuses to process the transfer
applications on the grounds that the Albanian citizen has not produced documents
from the Agency for State Takings that the fine and court costs have been
extinguished.
Also, when Albanian citizens request that the penalty “fine” be transferred to Albania
together with the penalty “depravation of liberty”, the reply of the Supreme
Prosecutor is the following, to paraphrase “the Republic of Bulgaria has no
practice to request other states collect debts owed to the Bulgaria State,
therefore your request for a transfer procedure is denied”.
The First Secretary will discover that (1) there is no legal provision in the Bulgarian
Criminal Code that requires money obligations be paid by a prisoner prior to release
on Parole, and; (2) that Bulgarian citizens are not required to pay fines or court costs
as a condition of their parole.
request transfer under the Convention for the Transfer of Sentenced Persons, the
Office of Bulgaria’s Prosecutors General – Filchev – Supreme Prosecutor for the
Republic of Bulgaria
6) Your citizens’ rights to transfer and parole are affected by the following Bulgarian
national laws and treaties.
“Section III.
Delivery pursuant to an International Treaty of Persons Sentenced to
Imprisonment for Serving the Term in the State, Whose Citizens They Are
(New section, SG, No. 52/1980)
Competent Body
Art. 442. (1) (Amend., SG, No. 50/1995; suppl., No. 64/1997) The delivery of
persons sentenced by a court of the Republic of Bulgaria for sustaining the
punishment in the state, whose citizens they are and the acceptance of
Bulgarian citizens sentenced by a foreign court for sustaining the
punishment in the Republic of Bulgaria, shall be decided by the Chief
Prosecutor by an agreement with the competent body of the other state,
where there is a consent in writing of the convicted.
(2) The decision for delivery or acceptance of the convicted may be taken
COMMENTS
It should be apparent to the First Secretary that according to the abovecited Tax
Code of Procedure, the Bulgarian Agency for State Taking can extinguish the
uncollectible money debts of Albanian citizens; this includes fines in criminal case.
However, as the First Secretary has seen, there is no will on the part of Agency
Officials to extinguish the debts of non-Bulgarians, the reasons for this are
unclear. But since there is no foundation in law for refusing the requests of
Albanian citizens then obviously the decision is political policy and practice.
From the above is clear that the question of if a fine is “collectable” from a citizen
of Albania is one to be addressed under the Bulgarian Tax Procedure Code [see
below] and not the Bulgarian Criminal Code. This Mr. First Secretary is significant
in that Bulgaria’s Prosecutors General (Filchev) cannot legally demand the
collection or payment of a fine as a condition for a citizen of Albania to be
transferred.
“Art. 39a. (New, SG 42/01) The compulsory administrative measures imposed to the
foreigners according to this law are:
1. revoking the right of stay in the Republic of Bulgaria;
2. compulsory taking to the border of the Republic of Bulgaria;
3. expulsion;
4. prohibition to enter the Republic of Bulgaria;
5. prohibition to leave the Republic of Bulgaria.
Art. 43. (Amend., SG 42/01) (1) Prohibition to leave the Republic of Bulgaria shall be imposed
to a foreigner who:
1. has been convicted by an enacted sentence and has not served the imposed
imprisonment;
2. (amend., SG 37/03) has liabilities over 5000 levs to corporate bodies or individuals
established by court order and which have not been duly secured;
3. (Amend., SG 45/02) has liquid and exigible liabilities to the state of over 5000 levs, or who
is a member of the control or managing bodies of corporate bodies who have liquid and
exigible liabilities to the state of over 5000 levs which are not duly secured.
(2) The measures under para 1 shall also apply to foreigners who also have Bulgarian
citizenship.”
COMMENTS
The Bulgarian Law for Foreigners in Bulgaria is cited by Bulgarian prosecutors
whenever they are challenged on the reasons for refusing citizens of Albanian
their possibility of transfer or legal right to parole. Bulgarian prosecutors insist that
imprisonment of Albanian citizens must continue until the financial debts are
settled with the State of Bulgaria, only then that a citizen of Albanian can leave the
territory of Bulgaria. Therefore transfer or parole are impossible since id est
transfer or parole would require the foreign citizen to depart Bulgaria and that is no
legally allowed.
Article 39a of the Law for Foreigners in Bulgaria is a form of “arrest
[deprivation of liberty]” sine die and for debt without due judicial process or
the right of appeal.
The above Bulgarian national law, policies and practices contract major Articles of
the European Convention on Fundamental and Human Rights, in particular Article
5 – no arrest without legal cause or procedure – debt to the state of Bulgaria not a
crime subject to deprivation of liberty id est any form of imposed obstruction of the
right to return home and to cohesion of the family is a deprivation of an otherwise
guaranteed liberty and Article 1 and Article 2 of Protocol 4 to the ECHFR –
freedom of movement and no imprisonment for debt.
g) Articles 70 of the Bulgarian Criminal Code – Right of Albania
Citizens to Parole reads;
Section II.
Release Ahead of Term
“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.”
COMMENTS
As the First Secretary can see, the right to parole after half sentence relies only on
the Albanian citizens conduct while in prison, and not on paying a fine. Therefore
the refusal to allow citizens of Albanian to be paroled is political and discriminatory
having nothing to do with law.
The procedure of parole is governed by two step procedure as follows:
Step 1 On a citizen of Albania having completed half his sentence the
Sofia prison administration is required by law to submit his case to
the court - see below Article 17 Law on the Execution of
Punishments - the First Secretary asked to recall that all
citizens of Albania [foreigners] are refused this procedure;
OR
Step 1 The Citizen of Albania petitions the Prosecutors Office for a judicial
review of his case on the question of Parole;
Step 1A The prosecutor accepts or rejects the request – the First
Secretary asked to recall that all requests by citizens of Albania
are rejected due to the nationality and property status of the
prisoner;
Step 2 The Sofia city court determines if the citizen of Albania will pose a
future threat to Bulgarian society if he were to be released. This is
impossible since foreigners are deported and to denied reentry to
Bulgaria for an indefinite term. The Court may refuse parole ONLY
IF IT IS REPORTED THAT THE PRISONER HAS
DEMONSTRATED ANTI-SOCIAL BEHAVIOR.
h) Articles 17 of the Bulgarian Law for the Execution of Punishments
Criminal Code – proposals for parole reads;
Art. 17. (1) (amend. SG 28/82) At the prisons and the reformatories shall be established
commissions, comprised by: 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) (amend. SG 62/02) In the commission shall be included also the inspectors for social activity and
reforming work, when the situation with the prisoners in their group is considered.
(3) In the commissions at the reformatories shall be included also a representative of the regional
commission for fight against anti-social acts of minor and under aged.
(4) At the sessions of the commission a prosecutor from the regional prosecutor’s office shall be
present.
(5) (amend. SG 62/02) The commissions shall take decisions about:
1. the change of the regime for execution of the penalty to a lighter or heavier within the limits of the
Albanian citizens and others will not act to end them so long as there is absent
diplomatic cooperation among those Council of Europe member states or
observing states whose citizens are suffering needlessly. Cooperation between
representatives of member states appears the only hope to ending Bulgarian
policies and practice that discriminate according to nationality and are inconsistent
with international and national law.
COMMENTS – WHAT CAN BE DONE
First Secretary Mara, one of the greatest difficulties I and representatives for the
Government of Canada encounter are junior Bulgaria Officials who refuse to
provide answers or when answering attempt to avoid being concrete. It is
impossible to formulate a legal or diplomatic response in the absence of any
concrete answers.
Also there exists a culture of deception and concealment from one agency to
another, the Ministers for Justice and Finance receiving glowing reports from the
Sofia Prison and the Agency for State Takings when in fact nothing in those
reports is true. As a result the Ministers do not respond to the complaints and
defend complaints by relying on the facts fabricated in these reports.
I have found that when the Minister for Justice and Finance are confronted with
the facts and asked to investigate which representations are true, then thing get
done.
Proceeding on this and the relevant Bulgarian national laws I would think that the
first step of the Consulate would be to confirm the Orders, directives or
instructions issued by either the Minister for Justice or the Prosecutors General
that require prison officials and prosecutors to not apply certain national laws to
citizens of Albanian or to impose demands on citizens of Albania that are different
[and in some case impossible] from those imposed on citizens of Bulgaria
imprisoned in Bulgaria and abroad id est Bulgarian citizens in Canada or Greece
are not required [by Bulgaria’s prosecutor] to pay fines or courts costs prior to their
transfers to Bulgaria.
Also, to confront the Minister for Finance with the fact that his Director for Agency
for State Takings is refusing to issue Decisions on the collectibility of money from
citizens of Albania, and is therefore by misfeasance and omission unreasonably
and unlawfully denying citizens of Albania their treaty right to transfer and the legal
right to parole.
First Secretary Mara, please recall that discrimination according to nationality or
property status [the absence of the money needed to pay the fine] is unlawful both
internationally and according to Bulgarian national law.
I hope you found this helpful,
Sincerely,
Michael Kapoustin
PS Please feel free to contact the Canadian Embassy in Bucharest if you are of
the opinion they can give you some additional insight. Furthermore, the Turkish
Ambassador has been very active in this regard.
I also attach for you consideration a letter I wrote to the US Ambassador, and
respectfully request you advise me if a similar request to the Ambassador for
Albania would be appropriate.
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