До: ВЪРХОВЕН АДМИНИСТРАТИВЕН СЪД

Пето Отделение
Съдебен Заседания: 25.09.2007 14:00
Ответник: Комисията за защита срещу дискриминацията
бул. «Драган Цанков» № 35
София 1113
Трети Страни: Министерство на правосъдието на РБ
Главна Дирекция „ИН” на МПРБ
Главен Прокурор РБ
Министерска Съвет РБ
Затвор София

RESPONDENT MOTION No. 4/23.09.2007

From Michael Kapoustin
“ZO” Kazichene
To the Court,
This Applicant has the deepest respect for this Court, however he feels very strongly that there
remain questions not yet settled by this Court id est procedural law and sine quo non right to
equality at arms. It now apparent that ONLY the fundamental human and civil rights of foreign
nationals is being negatively affected when they appear in proceeding before the administrative
Court and against institutions, agencies, and instrumentalities of the Government of Bulgaria.
Admittedly the Applicant is both legally naïve and a lay litigant, but his conviction in this matter
is such that he believes this Court SHOULD NOT proceed to a hearing of adm. case No.
3636/2007 until there is a final judicial determination on the following three questions of law;
1. Does a legal obligation exist for administrative institutions, agencies, instrumentalities,
officials and employees of the Government of Bulgaria to communicate in writing and in
a language other than Bulgarian those administrative acts, decrees, actions, inactions,
rulings, decisions or other official documents or correspondences when such a document
or correspondence directly or indirectly affects the legal rights and obligations of an
individual or group of foreign nationals to be found in Bulgaria and who cannot
understand the Bulgarian language?
2. To which party does the financial burden for the translations of these Government of
Bulgaria administrative acts, decrees, actions, inactions, rulings, decisions or other official
documents or correspondences from the Bulgarian language to another language belong to
(1) the administrative institution, agency or instrumentality of the Government of
Bulgarian that is (a) the author inter alio the Ministry for Justice, the Minister; or (b) the
executor, inter alio the Main Directorate for Correctional Services, the Director; OR (2) to
the foreign nationals whose legal rights and obligations are affected and who against his
or her will must remain in the Republic of Bulgaria and awaiting inter alia deportation,
sentencing in a criminal trial, completion of all or part of a criminal sentence, IN
DETENTION FOR PERMISSION to leave under art. 43 of the Foreigners in Bulgaria
Act?
 3. Can there be a “fair administrative proceeding” and equality at arms for a non-Bulgarian
speaking part within the meaning of art. 8 and art. 9 of the APC and art. 6 s. 1 and 6 s.3 of
the ECHR WHEN in the name of the Government of Bulgaria the Respondents REFUSE
to translate from the Bulgarian language their administrative acts, decrees, actions,
inactions, rulings, decisions or other official documents or correspondences THAT
directly or indirectly affect the legal rights and obligations of those foreign nationals who
REMAIN IN BULGARIA ONLY BECAUSE the Government of Bulgaria refuses to
transfer them to prisons in their home states and also refuses to allow them equal rights as
Bulgarian nationals to inter alia employment, parole, and furloughs?
Furthermore, there is the question of the pre-trial actions and inactions of those
Respondents that control the physical person of this Applicant and the duress suffered by
the Applicant.
The Applicant and a number of other foreign nationals deprived of liberty have at different times
appeared before the Administrative Courts for the Republic of Bulgaria. Each such court
appearance finds this Applicant and those others like him subjected FIRST to constant physical,
physiological and emotionally duress. Such a form of duress can have only one purpose, to
discourage prison inmates from undertaking any form of human or civil rights litigations against
the Respondents. Some Officials of the Respondent Ministry for Justice, Main Directorate for the
Execution of Punishments and the Sofia Prison are responsible for allowing these near unbearable
physical and psychological circumstances to exist at the Sofia and other prison and during a
police transport of an inmate to and from courts throughout Bulgaria. Among the worst
experiences any prison inmate can recount to this Court is the experience of being transported to
and from court.
For this Applicant to Appear before the Supreme Administrative Court in Sofia from the
Respondent Ministry for Justice prison facility at “ZO” Kazichene, he had to endure a trip of
three days. Two nights of which he spent and will in the future spend locked in a filthy and
overcrowded transit cell at the Sofia prison. Yet in point of both law and in fact, the Applicant and
many others at “ZO” Kazichene like him are all relaxed regimes and CAN and SHOULD BE
allowed unsupervised off prison grounds for inter alia appearing at court or for medical reasons.
However, in the case of this Applicant the Respondent Ministry for Justice, Main
Directorate for Correctional Services and Sofia Prison INTENTIONALLY REFUSED to
allow the Canadian Applicant a furlough so he could travel to and back from this Court on
the 25.09.2007 in the company of (1) an employee of the Canadian embassy; (2) a Bulgarian
attorney or (3) an officer of Bulgaria’s Ministry of Interior. Such “pre-trial” physical and
psychological duress is relied by officials of the Respondents as a form of discouragement for
any inmate considering the filing of a legitimate complaint that requires they make an appearance
before a Bulgarian Court.
Another obstacle AGAIN comes from officials of the Respondents and is the subject matter
of this and the Applicant’s prior motions, it is the Respondents historic and notorious
practice of REFUSING to provide written translations.
In the 12 years of his imprisonment, the Applicant can recall not one instance of the Respondents
officials agreeing to translate from the Bulgarian language to the language of a foreign national a
single one of the numerous administrative acts, decrees, actions, inactions, rulings, decisions or
other official documents or correspondences that individually or collectively affect the rights and
obligations of this Applicant and the several hundred other foreign citizens to be found in
Bulgaria’s prisons.
By refusing to provide such translations, the officials of the Respondent are once again acting to
create circumstances designed to makes it nearly impossible for a non-Bulgarian speaking foreign
national and prison inmate to bring an administrative or other legal complaint against any one of
the Respondents. If a foreign national cannot understand the legal right negatively affected
or the obligation created by an official of the Respondents then he or she cannot challenge
or defend that right or prosecute the obligation.
Some officials of the Respondents have intentionally created these physical, psychological,
financial and language barriers solely to discourage legitimate dissent among their prison
inmates, particular the minority of foreign nationals. To the Applicant this a form of organized
physical and mental torment simply cannot be justified or excused by security concerns. And it
cannot be that torment and the absence of any written translations of official documents are
somehow a part of the “inherent harshness of prison”.
The Applicant therefore Asks the Court Consider His Questions, Arguments and
Requests Within the Context of the Above Circumstances.
That Adm. case No. 3636/2007 is initiated on the Appeal of the Ministry for Justice. Therefore
this Motion is filed by the Applicant’s acting in his legal capacity as a Respondent to the Appeals
of the State Parties.
THAT ONLY after the assistance of the interpreter did the Applicant come to understand that ON
12.06.2007 THE COURT DID NOT ISSUE A COMPLETE RULING ON ALL HIS
REQUESTS AS MADE IN “RESPONDENT” MOTION No. 1 under adm. Case No.
3636/2007, inter alia the last paragraph of the last page under the heading “Art. 127 ADP”. As a
result, the Court is NOW PETITIONED to issue a SINGLE RULING on the unanswered
parts of the Applicant’s 11.06.2007 Motion No. 1 and on his 14.09.2007 Motion No. 3 to be
REPORTED on the Court’s record for the hearing 25.09.2007.
Background to this Motion
Through the interpreter the Applicant discovered that during the hearing of 12.06.2007 the Court
ISSUED A RULING ONLY obligating the Applicant according to art. 14 s. 4 APC and this in
his legal capacity as a foreign national and Appellant id est the “initiator of a procedure” [see
under adm. case No. 3643/2007 ended SAdmC RULING No. 4692/11.05/2007]. The Applicant
was to be procedurally and financially responsible for translation into the Bulgaria language
of any foreign language documents filed by him as the foreign national and “initiator” of the
appellate proceedings.
HOWEVER NOWHERE ON THE RECORD FOR 12.06.2007 DID COURT OBLIGATE
THE APPLICANT OR THE EXPERT INTERPRETER TO PROVIDE TRANSLATIONS
OF (1) the separate written Appeals and other documents filed by the Bulgarian State “initiators”
under inter alia; the Appeal under adm. case No. 3639/2007 [see ended RULING No.
4692/11.05/2007, the Main Directorate for the Execution of Punishments vs. Commission
DECISION No. 12/2007]; Adm. case No. 3636/2007 [see consolidated art. 123 CivCP in conj.
art 144 APC, the Ministry for Justice vs. Commission DECISION No. 12/2007; the Appeal of the
other State Party, the Sofia Prison Administration as filed by its Warden on 22.03.2007 as an
interested third party.
FURTHERMORE, NOWHERE ON THE RECORD FOR 12.06.2007 DID COURT
OBLIGATE THE APPLICANT TO TRANSLATE THE APPEALED DECISION No. 12
OF THE COMMISSION. A CLOSER EXAMINATION OF THE 12.06.2007 PROTOCOL
REVEALS THAT IN FACT THE COURT DID NOT ISSUE A RULING UNDER ART. 14
APC TO OBLIGATE;
THE THREE STATE PARTIES of the Ministry for Justice, the Main Directorate for
Correctional Services and the Sofia Prison in their legal procedural capacities as;
(1) the “initiators” and therefore legally obligated to translate those Appeals as filed them
with the Court on 22.03.2007 into the language of the Canadian and non-Bulgarian
speaking RESPONDENT [see art. 14 s. 2 APC mutatis mutandis “…costs of
translation shall be borne by the person who…the administrative proceeding was
initiated at the request thereof…”]; AND
THE FOURTH STATE PARTY of the Commission for Protection from Discrimination to in its
legal procedural capacity as;
(2) the “ISSUER” and “AUTHOR” and therefore legally obligated to translate the
appealed administrative DECISION No. 12 /2007 into English together with any other
UN-TRANSLATED documents prepared by the Commission under discrimination case
No. 48/2006. Only in this way can the Commission comply with its legal procedural
obligations under art. 53 s. 2 in conj. art. 70 s. 1 of the Law for Protection from
Discrimination in conj. with art. 14 s. 4 and the words “The costs of translation shall be
borne by the person who has no command of the Bulgarian language…unless a law [art.
53 s. 2 LPDA] or an international treaty provides otherwise” when this is read with art.
Article 6 §§ 1 and 3 (a), (b), (d) and (e) (art. 6-1, art. 6-3-a, art. 6-3-b, art. 6-3-d, art. 6-3-
e), as well as Article 14 (art. 14) of the European Convention and. [see as authority
European Court, Luedicke, Belkacem and Koз judgment of 28 November 1978, Series A
no. 29, p. 20, § 48).
The Commission legal representative erroneously argued that the Commission had no legal
obligation to translate discrimination DECISIONS affecting legal rights and obligations of
foreign nationals in Bulgarian and relied on art. 14 s. 4 of the APC. This Court failed to recognize
the Commission’s argument as intrinsically flawed and legally wrong. The Commission unable to
rely on art. 14 s. 4 APC and cannot transfer the financial and procedural burden of written
translations to and from the Bulgarian language to non-Bulgarian speaking foreign nationals who
have filed discrimination complaints before the Commission.
Foremost for the reason that art. 14 s. 4 APC CANNOT AND DOES NOT SUPERSEDE the
legal procedures and financial obligation of the Commission as established under Chapter IV
Section 1 of Bulgaria’s Law for Protection from Discrimination. In fact the reverse is true, art. 53
s. 2 of LPAD supersedes art. 14 s. 4 of APC. According to art. 70 s. 1 LPAD the APC CAN
ONLY BE RELIED ON BY THE COMMISSION as a supplement to procedures found in the
LPAD not as a replacement for the LPAD. The issue of “costs” for procedural actions before the
Commission is settled by art. 53 s. 2 LPAD and cannot be SUPERSEDED by art. 14 s. 4 APC.
APPLICANTS REQUEST
On 25.09.2007 the Supreme Adm. Court 5th Section ISSUE a single RULING on the
Respondent’s Motions No. 1 and No. 3 AND;
1. ORDER the Government of Bulgaria MINISTRY FOR JUSTICE, MAIN
DIRECTORATE FOR CORRECTIONAL SERVICES AND ADMINISTRATION OF
THE SOFIA PRISON to furnish the Court with English language translations of their
written appeals, motions, pleadings or documental evidences and this together with
the original Bulgarian text to be delivered to the non-Bulgarian speaking and
Canadian citizen in his capacity as a “Respondent” to their appeals against
Commission DECISION No. 12/2007;
2. ORDER the Commission for Protection from Discrimination to furnish the Court an
English language translation of its DECISION No. 12 /2007 and also translations of all
other WRITTEN INTERLOCUTORY RULINGS issued by the Commission or received
by the Commission from the Government of Bulgaria Respondent BUT NOT translated
for the Applicant and these together with the original Bulgarian text to be delivered to the
non-Bulgarian speaking Canadian citizen
3. ORDER the Applicant KAPOUSTIN to provide the Commission a list with what
Bulgarian language documents under discrimination case No. 48/2006 the Commission
REFUSED or FAILED in its procedural obligation to translate into English from
Bulgarian or from English into Bulgaria
TO ADJOURN UNTIL TO A DATED AFTER THE APPLICANT RECEIVES HIS
TRANSLATIONS;
ALLOW ACCORDING TO ART. 229 and the following of the APC, the Applicant or
Respondents to file Interlocutory Appeals within 7 days;
AGREE ACCORDING TO ART. 233 s. 3 of the APC, to adjourn to a later date AFTER there is a
final RULING on any appeal made to the SAdmC 5 The Applicant asserting that these
administrative proceedings would be “unfair” if they were to continue without the requested
translations and the Applicant required to defend his fundamental rights and legal interest without
the benefit of translations of Appeals and other documents filed by the Ministry for Justice, Main
Directorate for Correctional Services and Sofia Prison and of Commission DECISION No.
12/2007 or translations of other documents under discrimination case No. 48/2007.

М. Капустин