Чрез: СГС НК

ПРЕДСЕДАТЕЛ
до: САС НК
ОТ: М. Капустин
Л/С в ЗО „Казичене”

ADDENDUM TO ANAPPEAL
AGAINST A RULING FROM MARCH 6, 2008
BY
THE SOFIA CITY CRIMINAL COURT
In the Case of the POSSIBLE Parole of Michael Kapoustin
Your Honors,
Applicant requests a public hearing and (1) to call 3 independent observes as witnesses present
during the trial on March 6th 2008 and whose testimony will prove procedural violations that
occurred but that do not appear in the court’s written record of the trial (2) to present the Court of
Appeal court relevant statistical data collected from the Ministry for Justice Correctional
Services Directorate establishing (a) the number of first time Bulgaria offenders released by
other trial judges of the first instance court and having significantly more than ith 3.6 years
remaining on their criminal sentences; and (b) the number of first time Bulgaria offenders still in
prison for 12 years or more for theft of property; (3) to have the Court of Appeal secure evidence
concerning the personal relationships of the first instance trial judge to persons alleging to have
lost money in the Applicant’s company, ergo the first instance court trial judge was personally
interested in the outcome of the trial. GROUNDS; Applicant believes that family members or
very close associates to the presiding first instance court Judge alleged before her to have been
victims of the crime of the Applicant. As a result, the first instance court Judge acted and was
personally interested in the outcome of the trial. Refusing ex officio to withdraw, the first
instance court Judge instead was motivated and acted to punish the Applicant by going against
the findings of fact issued by the Sofia Prison “Commission” and instead imposing a harsher
standard on the Applicant than Court did on others and resulting in higher and disproportionate
term of effective imprisonment beyond what is the common practice in similar cases among
judges of the Sofia City Criminal Court; (4) to prove the first instance trial court judge
knowingly violated her oath and the national law according to s. 86 ss. 2 of the Judicial Powers
Act; (5) and intentionally violated the procedural rights of the Applicant.
 Contents
The Applicant Believes His Appeal to Be Procedurally Admissible On The Grounds That;.....................................2
Legal Merits – Is Applicant’s Appeal Grounded. Are There Legal Reasons for Overturning the First Instance
RULING or For a New Trial?.....................................................................................................................................4
Procedural Violation...............................................................................................................................................4

Violations of Oath and of s. 86 ss. 2 of the Judicial Powers Act and a Binding Decision of the Supreme Courts
as well as s. 2 ss. 2 of the Correctional Services Act..............................................................................................4
Background to the Appeal – Should the Appeal be considered? ...............................................................................5
The Question of Procedural Admissibility.............................................................................................................5

Refusal of Court to Identify Applicable Section of CCP.......................................................................................5

Should the Sofia Criminal Court of Appeals RULE on the Essence?....................................................................6

The Above Facts and European Treaty Law Supports an OPEN Appellate Review, Trial and RULING upon the
Essence of the Applicant’s Appeal.........................................................................................................................6
Sofia Criminal Court of Appeals MUST Seriously Consider and Answer Any Misrepresentations of Law and
Rights When Made by the Sofia City Criminal Court – Can there be a fair trial when the Judge does not know the
law? ............................................................................................................................................................................6
IF the Sofia Criminal Court of Appeals finds that the first instance court was wrong and there is no procedural
right of appeal for this Applicant or others, then how can ANY RULING or DECISION by this same judge be
trusted at all as to is correctness and as to its legal reasoning of “excessive remainder”?....................................6

DOES the Sofia Criminal Court of Appeals Condone the Miscarriages of Justice and Misapplication of Law by
the Lower Court When Refusing to Hear the Subject Matter of an Offender Appeal against Refusing Him
Parole? ...................................................................................................................................................................7
What is Requested from the Sofia Criminal Appeals Court.......................................................................................7
Alternatively;..........................................................................................................................................................7

Alternatively if refusing jurisdiction on procedural grounds;................................................................................7

The Applicant Believes His Appeal to Be Procedurally Admissible On The

Grounds That;
1. The right of appeal is identified AS A RIGHT in the disputed and challenged SC Criminal
Court RULING from March 6 2008. The Sofia Court of Criminal Appeals MUST respect
the recorded promises of the first instance court;
 2. The right of appeal is NOT SPECIFICALLY PROHIBITED BY THE LEGISLATOR in s.
440 of the CCP, mutatis mutandis procedural application of article 56 and article 120 para.
2 of the Constitution. Respectively (1) the constitutionally guaranteed and fundament right
to a legal remedy; and (2) that the procedures under s. 437 and the following CCP are in
conj. with art. 17 of the Correctional Services Act and are fundamentally a continuation of
a “administrative procedure” for the confirming of an administrative RULING [by the
“Commission” under art. 17 CSA] allowing for an alteration in WHERE AN OFFENDER
WILL CONTINUE TO SERVE HIS CRIMINAL SENTENCE id est (1) conditionally
and under limited freedom and probationary for a period of 6 months; or (2) conditionally
under the strict control of probation officers. As a result, the SAC MUST apply to the
present procedure art. 120 para. 2 of the Constitution [see mutatis mutandis EC Judgment
Mihailov v. Bulgaria, Judgments 21.07.2005];
3. Alternatively, if SAC has no jurisdiction in “administrative matters” under the CSA in
conj. s. 437 CCP, then it should forward this Appeal to the competent higher court;
4. Art. 13 ECHR in conj. art. 5 para. 4 CRB, the right of remedy is FUNDAMENTAL and
must therefore be provided for by the Courts;
5. Art. 5 para. 4 CRB, the superior law is treaty law;
6. Art. 58 para. 1 CRB, the judicial members of the Sofia Court of Criminal Appeals have a
duty FIRST to the Constitution as the supreme national law. Here a lower normative act
[[s. 440. ss. 2 CCP]] contravenes a tangible legal provision of (1) the supreme national
law and (2) a binding international treaty. This does thereby create for the Sofia Criminal
Court of Appeals Court a procedural as well as moral and legal obligation or dilemma; (1)
to notify the Constitutional Court and forward the Applicant’s case or (2) to deny the
Constitution and the fundamental right of Appeal and principle of equality with arms;
7. Art. 6 para. 1 in conj. art. 13 of the ECHR and principle of equality at arms. The right to a
access a remedy by appeal [or protest] cannot exist ONLY for the State party, id est the
Sofia City Prosecutor and not for those negatively affected by a criminal court’s
administrative decision to REFUSE to approve an administrative MOTION for altering
where a criminal sentence will be served inter alia inside a prison or under supervision of
the same authorities outside of prison;
The Applicant welcomes and looks forward to reading the Court’s REASONS on why any of the
foregoing is flawed in law or logic. And to learn from the Court how is it that an article of
procedural law [s. 440 CCP] NOT SPECIFICALLY DENYING THE APPLICANT A
RIGHT TO A REMEDY [APPEAL] is interpreted by the SAC in the negative context, id est if
no right of remedy is specified in the legislators’ Rule then no right of remedy exists. Such
reasoning has been proven as contravening the Constitution, the ECHR and will not withstand
any the legal test [see again jurisprudence of the EC and Supreme Courts of Bulgaria under
Mihailov v. Bulgaria, Judgments 21.07.2005].
Legal Merits – Is Applicant’s Appeal Grounded. Are There Legal Reasons for
Overturning the First Instance RULING or For a New Trial?

Procedural Violation
8. Article 6 para. 1 ECHR in conj. with national procedural law under s. 439 ss. 6 CCP and
s. 11, s. 12, and s. 15 CCP. The first instance court judge DID NOT honor Applicant’s
procedural right to BEFORE PASSING HER DECISION respond to the Sofia
Prosecutors Office in defense of himself or to make a statement to the Court as was his
right.
9. A close examination of the first instance Court’s RECORD and ATTACHED HERE
WITNESS STATEMENTS reveals that the Court DID NOT make a request to the
Applicant IF he wished to make a statement [s. 439 ss. 6CCP]. The trial judge instead
issuing her RULING immediately and without the Applicant being permitted to speak to
the Court;

Violations of Oath and of s. 86 ss. 2 of the Judicial Powers Act and a Binding Decision of the
Supreme Courts as well as s. 2 ss. 2 of the Correctional Services Act
10. S. 86 ss. 2 of the Judicial Powers Act. Interpreting decisions are binding on the first
instance court;
11. The trial judge of the first instance court is familiar with задължителното Постановление
№ 7 от 27.У1.1975г., на Пленума на ВС, изм. с Постановление № 7 от 6.УП.1987г.
относно условното предсрочно освобождаване от изтърпяване на наказанието.
Постановления и тълкувателни решения на ВС на РБ по наказателни дела - 1953 - 1990 г.,
СЮБ, 1992 г., стр. 109 чл. 70, 72, чл. 41, ал. 3, чл. 37 НК чл. 36, чл. 54, чл. 55 НК, и по-
точно „5.) При решаване на 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" и „9) (Изм. т. 7, постановление № 7/87 г., Пл.)
Пленумът на Върховния съд констатира, че поначало съдилищата отчитат
значението на условното предсрочно освобождаване и правилно прилагат закона.
Понякога обаче стимулиращото и възпитателно значение на този институт се
подценява.

12. В резултат на това неоснователно се отказва или забавя приложението му по

непредвидени в закона критерии, "че наложеното наказание по размер е малко или
голямо, че остатъкът за изтърпяването е голям или малък, лицето е частичното
помилвано и др. Правилно е условно предсрочно освобождаване спрямо лицата, които
за първи път търпят наказание лишаване от свобода, да се постановява своевременно,
ако те с цялостното си поведение са дали достатъчно доказателства за своето
поправяне. Има и случаи, когато това освобождаване се постановява спрямо лица с
предишни осъждания, без внимателно да се преценява дали те действително са се
поправили. "
 13. The Applicant was REFUSED parole SOLELY for the reason of an alleged “excessive
remainder” id est Applicant having less than 3 years and 6 months remaining to his 17 year
sentence. This is legally wrong, flawed and intended only to cause pain and suffering.
14. The continued imprisonment of the Applicant and the Appealed RULING violate s. 2 ss. 2 CSA
and the words “the implementation of penal sanctions may not have as an objective the
infliction of physical suffering or subjection of the sentenced persons to a degrading
treatment”.
The Applicant asserts that the first instance court’s denying of parole for the reason of an
“excessive remainder” is (1) unlawful [see Постановление № 7 от 27.У1.1975г.,]; (2) factually with
any merit, the Applicant not a threat to Bulgarian society or himself and has only 3 years and 6 months
remaining; (3) is not supported by statistical data on the common practices of the first instance court in
cases of other first time offenders who are paroled in Bulgaria, the Applicant having detained evidence
bing

Background to the Appeal – Should the Appeal be considered?

The Question of Procedural Admissibility

The procedural admissibility for this Appeal exists ONLY in so far as that on the COURT
RECORD of March 6 2008 and according to representations made by and repeatedly insisted
upon the presiding judge of the Sofia City Criminal Court id est on the RECORD before an
open court having independent observers the presiding Judge insisted to this Applicant [and
made similar representations to other deprived of liberty appearing before her that day] that their
existed a “procedural right to Appeal” any unfavorable RULING issued by her court[see attached
sworn statement of witnesses and observers Mr. Radoslav Iovchev, attorney and Mr. Ivodor
Kovachev, prison pastor also present in the Court].

Refusal of Court to Identify Applicable Section of CCP

After announcing to the Court that the Applicant had “a right to Appeal”, the Applicant
immediately and repeatedly insisted that the presiding Judge identify to him the section and by
the procedural rule of the CCP that allowed for him to appeal the Court’s unfavorable RULING.
The Applicant made THREE very clear requests to the court for the Judge to identify the national
law.
This Appellant also made a citation of s. 440 of the CCP and clarified to the court the following;
that the subject of the criminal proceeding, this Appellant, could find reference to ONLY the
prosecutor having a legislated right of “protest”. There was no legislated right of Appeal either for
the Petitioner the Ministry for Justice Sofia Prison or the subject of the criminal trial, this
Applicant.
The Court replied to the Applicant by insisting, and I quote “you don’t need to know the article of
law, just file the appeal through the Sofia city court”, unquote.

Should the Sofia Criminal Court of Appeals RULE on the Essence?

There can be no dispute over the FACT that the presiding SCC Judge advised this
Applicant and other that they had a right of appeal. This appears in the RECORD of all the
hearings held on March 6th 2008.
There can be no dispute over the FACT that the presiding SCC Judge repeatedly insisted
on the Applicant’s right to appeal, and this notwithstanding the Applicant’s correct citation of s.
440 ss. 2 of the CCP.
There can be no dispute over the FACT that the presiding SCC Judge, when petitioned by
the Applicant, did refuse or more likely COULD NOT identify the rule of national procedural
law, the interpreting RULIING or DECISION by the Constitutional Court or a General Meeting
of the College of Supreme Cassation Court Judges or the provision of an international treaty that
would supplants s. 440 ss. 2 CCP.

The Above Facts and European Treaty Law Supports an OPEN Appellate Review, Trial and
RULING upon the Essence of the Applicant’s Appeal
On March 6 2008 the Sofia City Criminal Court announced to this Applicant and others that
RULINGS on parole [s. 70 CC in conj. s. 437 and 440 s. 1 of the CCP] are subject to review and
control by the higher court, on Appeal of the subject of the criminal proceeding id est this
Applicant and others denied parole.
IF the judicial credibility of the judges of the Sofia Criminal Court has any value, then the
Applicant and other persons deprived of liberty and denied parole on March 6th 2008 do have a
right of appeal and the Sofia Court of Appeal will uphold the representation made by the first
instance court.

Sofia Criminal Court of Appeals MUST Seriously Consider and Answer Any
Misrepresentations of Law and Rights When Made by the Sofia City Criminal
Court – Can there be a fair trial when the Judge does not know the law?

IF the Sofia Criminal Court of Appeals finds that the first instance court was wrong and there
is no procedural right of appeal for this Applicant or others, then how can ANY RULING or
DECISION by this same judge be trusted at all as to is correctness and as to its legal
reasoning of “excessive remainder”?
The first instance court insists on the RECORD that there is a right of appeal. However, the
national procedural law has no such provision.
The first instance court was informed by this Applicant in open court and on the record that the
national procedural law did not support the Judge’s promise of a right of appeal.
If there is no such right, the presiding judge of the first instance court has committed a serious
judicial blunder, one that should be sanctioned by a DECISION of the Sofia Criminal Court of
Appeal setting aside entirely the first instance court RULING and ORDERING a new trial on the
question of this Applicant’s Parole.
Furthermore, there are 7 other similar cases tried on March 8th 2008 and the Sofia Court of
Appeal should notify, ex officio, the Supreme Judicial Council of what is a miscarriage of justice.

DOES the Sofia Criminal Court of Appeals Condone the Miscarriages of Justice and
Misapplication of Law by the Lower Court When Refusing to Hear the Subject Matter of an
Offender Appeal against Refusing Him Parole?
The Sofia Court of Criminal Appeals must examine my Appeal (1) on its essence or (2) if
refusing on procedural grounds then to provide REASONS and clarification of WHY the Sofia
City Criminal Court wrongly insisted and misrepresented on the Court’s RECORD that there
existed.
The Sofia Court of Criminal Appeals must reconcile a refusal on procedural grounds with what
will be the obvious incompetence of a first instance court judge.

What is Requested from the Sofia Criminal Appeals Court

1. Accepting jurisdiction;
2. Accepting procedurally admissibility of appeal;
3. Admission of Witnesses and Evidence in favor of the Appellant;
4. A trial upon the lawfulness and correctness of the appealed RULING;
5. Overturning the first instance court RULING and REASONS as in direct contravention of
Постановление № 7 от 27.У1.1975г., на Пленума на ВС, изм. с Постановление № 7 от
6.УП.1987г. относно условното предсрочно освобождаване от изтърпяване на наказанието.
Постановления и тълкувателни решения на ВС на РБ по наказателни дела - 1953 - 1990 г.,
СЮБ, 1992 г., стр. 109 чл. 70, 72, чл. 41, ал. 3, чл. 37 НК чл. 36, чл. 54, чл. 55 НК., “excessive
remainder” NOT a legal reason for the refusing of parole;

Alternatively;
6. Declaring a “mistrial” and returning the case to the first instance court for a new trial;

Alternatively if refusing jurisdiction on procedural grounds;

7. To consider the constitutional conflicts of a RULING refusing a “right to remedy” for
offenders and denying them “equal rights” with the State prosecutor;
8. To reconcile in the Court’s reason the contradiction between the first instance court’s
understanding of law, id est asserting there is a right of remedy for offenders under s. 437 and
the following CCP and the Appeals Court RULING that no such right exists because the
RULE only grants such a right to the State prosecutor.

Подадено днес 19.05.2006 г.

Подписано от Майкъл Капустин
 До: САС НК
ОТ: Radoslav Iovchev
[identification info and address
here]

SWORN DECLARATION AS WITNESS

I, Radoslav Iovchev attorney in law do hereby offer to appear as witness and to on
subpoena testify before the Sofia Criminal Court of Appeal and Supreme Judicial
Council THAT THE FOLLOWNG IS TRUE;
1. That on March 6th 2008 I together with prison pastor Ivodor Kovachev and other
observers was in attendance at hearings before the Sofia City Criminal Court on that
day and during the trial reviewing the possible parole of Michael Kapoustin and
others;
2. That the presiding Judge ISSUED HER RULING WITHOUT REQUESTING OR
ALLOWING Michael Kapoustin to speak on the record concerning his parole;
3. That the presiding Judge announce to the Court that Michael Kapoustin had the
procedural right to appeal. This IMMEDIATELY AFTER the RULING refusing
parole;
4. That Michael Kapoustin did through the interpreter present and again later in broken
Bulgaria on 3 occasions insist that the presiding Judge identify to him and on the
Court’s RECORD the article of procedural law that allowed him to appeal her Ruling;
5. That the presiding Judge answered KAPOUSTIN by insisting that KAPOUSTIN “did
not need to know the law, but only to file the Appeal through the Sofia City Court”;
6. That Kapoustin when pointing to the Prosecution EXPLAINED in detail to the
presiding Judge that art. 440 of the CCP “only permits the prosecution the right of
protest” and again requested the trial judge identify the RULE allowing him to appeal;
7. That at no time during this verbal exchange was the trial Judge able to identify to
KAPOUSTIN the relevant article of law allowing offenders to appeal RULINGS
rejecting their parole;
Signed this day of 2008
 До: САС НК
ОТ: Ivodor Kovachev
[identification info and address
here]

SWORN DECLARATION AS WITNESS

I, Ivodor Kovachev, prison pastor do hereby offer to appear as witness and to on
subpoena testify before the Sofia Criminal Court of Appeal and Supreme Judicial
Council THAT THE FOLLOWNG IS TRUE;
1. That on March 6th 2008 I was in attendance as an observer at hearings before the Sofia
City Criminal Court on the question of the parole of Michael Kapoustin and others;
2. That the presiding Judge DID NOT REQUEST OR ALLOW Michael Kapoustin to
speak on the record;
3. That the presiding Judge did announce to the Court that Michael Kapoustin had the
procedural right to appeal her RULING refusing him parole;
4. That Michael Kapoustin through the interpreter present and in his broken Bulgaria and
on 3 occasions insisted that the presiding Judge identify the article of procedural law
that allowed him to appeal her Ruling;
5. That the presiding Judge answered him by insisting that he “did not need to know the
law, but only to file the Appeal through the Sofia City Court”;
6. That Michael Kapoustin pointing to the Prosecution did EXPLAIN to the presiding
Judge that art. 440 of the CCP “only permits the prosecution the right of protest” and
again requested the law allowing him to appeal;
7. That at no time was the Judge presiding able to identify to Kapoustin the relevant
article of law;
Signed this day of 2008