2006.02.07 evidential pleadings exh_1_8

8/14/2019 2006.02.07 Evidential Pleadings Exh_1_8

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/Grounds for the Request

For some 18 years officials of the Respondent have openly practiced discrimination inthe 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 Bulgarias prosecutors and

criminal courts. this despite the April to June 2005 mass hunger strike by some 60

foreign prisoners who protested against the Respondents 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 Bulgarias courts end an injustice and violation of national law that Bulgarias

prosecutors have so far refused to even investigate.

The Applicants 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 Bulgarias prison.

The Applicants believe that the wording of item 4 in the Respondents 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;


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,

, . 4 -04-277/04.10.2002 .

: " ,

. ,

" [seeRespondents letter 8319 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 Bulgarias national laws

and international agreements and must be rescinded immediately with full rights

restored retroactively to all foreign citizens in Bulgarian prisons.

FURTHERMORE, the Applicants 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 toproperty 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 Bulgarias 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 adindirectly 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 Respondents

most recent data.

Respondents 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 inter alia (1)to accessfull 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) to organize and participate in voluntary

bodies at prisons, and; (3) to have access to annual home leaves or day passes to visitwith family or attend university. However, the following request evidence will


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establish before the Court that ORDER LC 4- 277 has provided the sole excuse

for prison directors and employees of the Respondent to unreasonably and arbitrarily

deny to foreign citizens these and other rights or possibilities otherwise available to

Bulgarian and foreign citizens according to theLaw for the Execution of Punishmentsand the Criminal Code.

There for the Applicants request the Respondent deliver 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) The total numbers of foreign citizens housed in each type of prison and

hostel.

2) This 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;

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.

15811 for the Law for the Execution of Punishments and 4of the

13.09.2004 letter Deputy Minister Mario Dimitrov ];

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

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.


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Your Honors, these statistics will establish;

1. Arbitrariness, that officials of the Respondent are not

observing item 4 of ORDER LC 4-277 and that foreign

citizens are in fact spread through out Bulgarias prisons;

2. Indirect discrimination, that the Respondent is only housingforeign citizens in prison hostels of the Closed type, and is

unwilling to provide foreign citizens their equal legal right to

access prison housing according to their sentences and the

Bulgarian national law legislated under art. 8a 2 and 32

and art. 12a 1 and 33 of the Law for the Execution of

Punishments.

4) The numbers of foreign citizens that are (1) accused or defendants (see art.

132e 14 Law for the Execution of Punishments), and for those that are (2) with

sentences in force and who;

2 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.

3

Art. 12a. (new SG 34/74, amend. SG 28/82, SG 21/90, SG 62/02) Those, convictedfor 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.

4 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.


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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;

iii) Comparative figures for Bulgarian citizens at the same prison or hosteltype;

5) 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 ofart. 44 2, 3and 45 of the Law for the Execution of Punishment.

i) Comparative figures for Bulgarian citizens at the same prison or hostel

type;

(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.

(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.

5 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 ofart. 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.


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Your Honors, this will establish indirect discrimination;

1. With the implementing of item 4 of ORDER LC 4-277 the

Respondent unlawfully denies to foreign citizens their equal

right to access full time and gainful employment [..

];

2. When officials of the Respondents intentionally place

restrictions on what employment is available to foreign

citizens. Insodoing, officials of the Respondent knowingly

violate Article 411 of the Bulgarian CC and therebyintentionally are denying to foreign citizens their right to

equal possibilities to reduce their sentences according to

Article 413 CC.

3. When housing foreign citizens only in prison hostels of the

Closed type and segregating and isolating them from all other

Bulgarians. Insodoing 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].

4. When placing all foreign prisoners into one housing facility,

regardless of their crimes, sentences or regimes, and under

one and the same physical restrictions and psychological

distress. This practice is not consistent with the national law

in art. 42 item a6 of the Law for the Execution of

Punishments or the legal rights of individual offenders with

different sentences and having committed different crimes.

5. When officials of the Respondent unlawfully deny to non-

Bulgarian citizens their legislated right to complete their

sentences in housing facilities designated by national law.

Insodoing the Respondent indirectly discriminates by

denying foreign citizens 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.

6 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.


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6) 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 according to the

national law found in articles 66b, 68, 69 and 707of the Law for the Execution

of Punishments;


type;

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

participate in voluntary bodies according to articles 71, 72 and 738 of the Law

for the Execution of Punishments;

i) Identify the voluntary body of foreign citizens and its stated purpose;

7 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 forlife 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 fortheoretical and practical mastering of the speciality or the profession through ensuring of study

material base, free of charge textbooks, tools, aids etc.


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ii) Provide Comparative figures and information for Bulgarian citizens at

the same prison or hostel type;

Your Honors, this will establish that the very existence ofRespondents ORDER

LC 4- 277 promotes discrimination at the most fundamental and basic levels of culture.

By making it necessary for officials of the Respondent to segregate and isolateanyone who is not a citizen of Bulgaria, the Respondent has created separate but not

equal rights under law for foreign citizens. This has resulted in officials of the

Respondent denying to foreign citizens their equal right to participate in educational,

vocational or culture programs and in the voluntary prison bodies organized to address

the specific problems of rehabilitation, social integration and other needs of non-

Bulgarian citizens who are also members of prison and Bulgarian society.

AND MOST SIGNIFICANTLY it will prove that officials of the Respondent

intentionally make no effort to provide foreign citizens in prisons or hostels a

reasonable and equal alternative.

8) As an annual figure from January 1st 1991 to December 31 2005 for each prison

and hostel the numbers of foreign citizens allowed any form of leave

according to art.7491 items f, g and I and art. 751, 2 and 310 of theLaw for the Execution of Punishments have been granted;

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.

(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.

8 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.

9 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:


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type;

THESE STATISTICS WILL PROVE that officials of the Respondent are

intentionally practicing arbitrariness and indirect discrimination when absolutely

denying to all non-Bulgarian citizens their possibility to home leave from the prison fora few hours or days at a time. AND THE APPLICANT ASSERTS THAT THIS

INDIRECT DISCRIMINATION IS A RESULT OF RESPONDENTS ORDER

LC 4 277, and its instruction for officials of the Respondent to anyone who is not a citizens of Bulgaria. Officials of theRespondent have perverted these words to mean foreign citizens are intrinsically

dangerous to Bulgarian citizens and must be isolates from Bulgarian society, ergo

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, itemf).

(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.

10 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 withwritten consent by the respective prosecutor after serving one year of the penalty. This reward

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


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they 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].

After reviewing this and other evidence the Applicants reserve their right to request

addition evidence and to call witnesses.

, 07.02.2006 .

(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.


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2006.02.07 evidential pleadings exh_1_8

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