Defendant

Pleadings
5th March 2001
Your Honors.
Grounds
I. Background

92. The Applicant, a resident Canadian citizen since 1956 is a 48 year old businessman of
Russian - Jewish extraction who since 1989 has been employed as a consultant by
LifeChoice International Inc., a small cap [capitalization] offshore investment holding
company incorporated in St. John, Antigua in 1986 (hereinafter "LCI"). The primary
activity of LCI was, by way of limited partnerships, private placements and public floation
of corporate securities to provide financing for the research and development of new
clinical drugs for the treatment of cancer and HIV/AIDS. As a secondary activity LCI
facilitated commercial and trade financing for goods and services.

93. On 25 January 1992, the Applicant, after substantial correspondence during the
preceding year [1991] with representatives of various agencies or instrumentalities of
Government, traveled for the first time to the Republic of Bulgaria (hereinafter
"Bulgaria") to finalize negotiations which ultimately resulted, during the subsequent
period of years up to and including July 1995, in a number of clinical drug products,
commercial joint ventures and consumer goods and services activities, some with
Government institutions and agencies. Throughout the aforestated period the Applicant,
together with others, through the resources, facilities, ways and means of LCI, secured
internationally and domestically all needed financial and technological contributions for
the foregoing.

94. On 1 April 1994 LCI [Antigua], through its St. John, Antigua domiciled depositary division
BANQ1, (an acronym for "Balkan American National Quotation [1st] System), commenced
an offering of unsponsored depositary receipt facilities to residents of Bulgaria. LCI
sought to publicly capitalize its share equity of approximately 20,000,000 units of the
common stock of LifeChoice International - AD (hereinafter "LCIAD"), a company
incorporated by the Applicant and others in Bulgaria on 17 June 1993, LCIAD
consolidated, into a more manageable corporate body, all clinical drug products and other
commercial activities linked to Bulgaria. Depositary shares of LCIAD were evidenced by a
depositary receipt certificate (hereinafter "certificate") issued by BANQ1 in two market
nomenclatures, "Redeemable" ("RDR") and "American" ("ADR"), each having a declared par
value fixed by the depositary to a variable number of depositary shares. Certificates paid
monthly annuities derived from capital gains and non-taxable revenues of depositary
shares distributed as a percentage of their [certificates] par value. Certificates evidenced
investment contracts governed by the laws of the domicile [St. John, Antigua] of their
Issuer BANQ1.

95. On 21 June 1995 LCIAD and Applicant ran afoul of Government by refusing to pay
assessments of value added tax (VAT) inspectors [Sofia City Tax Administration], who
without having conducted an audit, had concluded that depositary receipt certificates
(RDR) as issued by BANQ1 (Antigua) were, inter alia, future contracts for a monetary
deposit; in fact distributing interest payments on those deposits, not annuities on
earnings (dividends) as declared thereupon; not securities under the domestic Law on
Commerce; not representative of subscribed capital [shares] in LCIAD; representative of
the depositary agent, LCIAD, carrying out illegal banking activities; printed in violation of
special enactments imposed on domestic corporations [Conditions and Rules for Printing
and Control Over Securities]; transactions subject to Value Added Tax on their

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 [certificates] declared par value; not tax exempt under Article 9 § 1 (2) conj. with Article 10
§ 1 (5), Law on Value Added Tax (LVAT), in having found so the Government demanded
LCIAD should pay it in value added tax 45,728,802 Bulgarian [undenominated, old] leva
and 21,202,681 in penalties, representing in the aggregate 66,931,483 Bulgarian
[undenominated, old] leva ($ 1,216,936.05 USD), representing a supposition as to the VAT
due on an undetermined number of RDR certificates beneficially owned by Bulgarian
residents.

96. Commencing in July 1995 LCIAD assets, accounts and commercial contracts with
agencies or instrumentalities of Government were terminated, closed or seized on account
of Applicant's refusal to comply with the payment or to accept the assessment of
Government of VAT on the gross value of depositary shares acquired by Bulgarian
residents from BANQ1, a non-resident issuer of securities unregulated by any domestic
law, the nature and character of which, as represented by the un-sponsored depositary
receipt facility, was not subject to Ministry of Finance, Conditions and Rules for Printing
and Control Over Securities of domestic issues. Applicant claiming VAT on the par value
of a security, in the absence of an audit violated international and domestic law.

97. On 15 July 1995, on account of the impact on LCIAD depositary share value as a
consequence of the aforestated and the enactment of a new Law on Securities and Stock
Exchanges the depositary, BANQ1, ceased the distribution of monthly annuities
[dividends], the Applicant advising all LCIAD staff to terminate all depositary receipt
facility agreements, as evidenced by the certificates, according to Article 22 of the
Depositary Receipt Offering and Agreement thereby commencing the exchange and
delivery of depositary shares to their beneficial owners. For a period of 16 months the
depositary had overpaid regular and timely monthly annuities. At all times LCIAD had
undertaken to and did provide an active and reasonably liquid secondary market for the
certificates issued by BANQ1 in Bulgaria as distributed and serviced by it [LCIAD].

98. On or about 4 August 1995 the Applicant lawfully departed Bulgaria on account of the
foregoing poor fortunes of LCIAD and civil litigation against Government precipitated by
the aforestated conduct and as commenced by the Applicant for LCIAD. Company
operations [LCIAD] continued to be staffed by personnel still employed. Operating costs
and salaries continued to be subsidized by LCI, the Applicant providing traunches of cash
to Mr. Robert Landy, an American citizen retained as a consult by the Applicant to oversee
the restructure of Bulgaria operations in light of recent events.

99. By 10 October 1995 3,257 beneficial holders of 4,731 known participants in the BANQ1
unsponsored depositary receipt facility had submitted directions and endorsed their
certificates to the law offices of McCandless, Morrison and Verddicchio (address from the
document) as custodian to them to effect the exchange of their certificates for the number
depositary shares equivalent to the certificates par value. The remaining 1,474 were
anticipated to complete their submissions to the Custodian some time later or
alternatively commence civil action. The relevant documents were placed into
individualized envelopes addressed to the Custodian and held in trust at LCIAD pending
their collection by a security courier and delivery to the Custodian.

100. On … October the 96, Rakovski Blvd corporate offices of LCIAD and legal administrative
offices of its corporate attorneys at 16, Batemberg St. were raided by police investigators
of the National Investigative Service (hereinafter "NIS") lead by investigator S. Georgiev all
corporate records, legal documents and computer data were taken, in total, from the
aforesaid offices, including those documents referenced in para 8 above. Offices were
sealed and employees put out on the street. On 22 February 2000 only a small part of

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 tens of thousands of LCIAD documents were returned the Applicant, the balance being
unaccounted for the Government.

101.On 7 July 1995, in compliance with an agreement dated 15 May 1995, the Government of
Canada as represented by RCMP [Royal Canadian Mounted Police] command liaison
officer, S. Sgt. Derek A. Doornbos, Embassy of Canada, Vienna, Austria, provided in
writing investigative conclusions and requests to Mr. Levicharov, Director of [the] Central
Service for [the] Fight Against Organized Delinquency [Centralna slujba za borba s
organiziranata prestapnost – CSBOP] by care of Mr. A. Kosev, “KMC” [phonetic], Ministry
of Home Affairs [Ministerstvo na vatreshnite raboti], that correspondence, as translated
from Bulgarian, the investigative conclusion, in part read:

“…[sic]… The latter [Ivon Shearing] is a partner of MAXWELL and a

former accomplice of KAPOUSTIN [Applicant] to his questionable
operations [unidentified] at the Vancouver stock exchange [British
Columbia, Canada]…[sic]…It was established that last year [1994] 4
million and 12 million USD had been transferred to several
bank accounts [in Canada] of [Ivon] SHEARING …[sic]…It was
established as well that other accounts of SHEARING had been
credited with amounts of about 100,000 USD per day. …[sic]… It is
considered as well that most probably a considerable part of
these amounts come from the funds [cash] accumulated in
Bulgaria by KAPOUSTIN [Applicant] through large-scale
financial frauds carried out by his pyramidal structure
“LIFECHOICE” [LCIAD]. Besides this it is established that the
transfers go through banks in the Caribbean Islands.”

( [ ] and emphasis Applicant’s)

102.RCMP Command liaison, S. Sgt. Doornbos, goes on to invite in writing that the
Government [Bulgaria] conduct investigative action and criminal prosecution of the
Applicant, thereby precipitating a Canadian Government sponsored search and seizure of
property and cash of the Applicant and others in Canada, translated from the Bulgarian
the invitation reads:

“Now each piece of information or even only supposition [by Bulgaria]

whatsoever about eventual breach of Bulgarian Law by
Kapoustin [Applicant] connected with LifeChoice that your service
[CSBOP] could submit [to Canada], is of special importance for the
investigation in Vancouver [Ivon Shearing]. In this instance our service
[RCMP] in Vancouver would be able to obtain search warrants of the
office premises and houses of the aforesaid subjects. In this situation
we consider there is every possibility we can successfully conduct a
large scale joint investigation as a result of which the assets
[16,000,000 USD] of SHEARING & Co [Applicant] in Canada will be
confiscated and it would be comparatively easy to prove in front of the
court that these are proceeds from criminal activities [in Bulgaria].
…[sic]
Can a criminal prosecution of any character at all [nakazatelno
proizvodstvo ot kakavto I da bilo harakter] be started against
Kapoustin [Applicant] or Life Choice [LCIAD] ?”

( [ ] and emphasis Applicant’s)

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103.An additional request to Mr. Levicharov and the Government agency NSBOP is embodied
in the 7 July 1995 as translated from the Bulgarian language, it reads:

4. “Have you any additional data or operational information in what

direction the funds obtained by LifeChoice [LCIAD] are being
transferred out of Bulgaria [Caribbean or Canada]?”

( [ ] Applicant’s)

104.On 17 July 1995, on account of the aforestated investigative conclusions and requests by
RCMP Command Liaison, Embassy of Canada, S. Sgt. D. Doornbos, the Government,
through the agency and instrumentality of the Central Service For [the] Fight Against
Organized Delinquency [CSBOP], upon the order of “M”, as countersigned “MV”, Bulgaria
commenced to “Take legal Action” [Da se zavede delo] against the Applicant.

105. On 7 September 1995 Prosecutor Mindova, Sofia City Prosecutor’s Office (“SCPO”)
provided the Sofia Department, Ministry of Home[Internal] Affairs (“MHA”), Economic
Police Sector 02 material containing data for fraud [in Bulgaria] as provided from the
Canadian Embassy, Vienna, Austria through the facilities of the Main Public Prosecutor’s
Office (“MPPO”), Republic of Bulgaria, the English translation of the letter reads:

“Herewith enclosed we send you a translation from English language of a

material sent to MPPO of RB by the Central Service for Fight against
Organized Delinquency – MHA according to information from the
Canadian Embassy in the Republic of Austria concerning the activities of
company Life Choice Int. AD. This material contains data for fraud by
Michael Kapoustin and other persons. To be attached to the
correspondence and verified.

We send you a letter from the Finance Ministry – Sofia Tax

Administration as well to be attached to the correspondence.

Enclosure: as per text.”

106. On 13 December 1995, according to a written memorandum, subsequent to the Order of

Detention [Arrest] as issued by police investigator [“sledovatel”] S, Georgiev and his 30
November 1995 request to Interpol, a meeting was occasioned in Sofia, Bulgaria upon the
subject of the Applicant. In attendance at the offices of A. Alexandrov were, inter alia,
Anatolii Kossev1 - department of “International Relations”, MHA; Miroslav Genov, Central

1
On 16 April 1999 Anatoli Kossev (“Kossev”), an official of the Government was appointed to the Applicant as his
“court” designated translator. In being part of investigative actions against the Applicant Kossev was, by statute
according to national law [Criminal Procedure Code, Article 90 § (2)], an interested and therefore bias party to
proceedings against the Applicant.
On 13 December 1999 the Applicant by written petition and later on 10 January 2000 orally before the Court
complained:

PETITION

In accordance with Article 51 para (1) with respect to the Defendant’s right under
Article 272 (1) of the Penal Process Code the Defendant motions that:

Al translators and interpreters employed by the Court and as listed separately in

the indictment in the Addendum Part IV under “Interpreters” up to today’s date be

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 Service for [the] Fight Against Organized Delinquency (“CSFAOD”); Roumen Andreev,
deputy chief, National Investigative Service (“NIS”) and police investigator [sledovatel] S.
Georgiev.

107.The said Memorandum was directed to Mr. Rashkov, Head, National Investigative Service,
the relevant parts as translated to English read:

Mr. Rashkov,

… [sic]…
… [sic] …
… [sic] …
dismissed and replaced upon the following grounds:

1) the Defendant has filed a criminal complaint against them under Article 290 para
(2) PC through the Court to the Sofia City Prosecutor;

2) the Defendant shall present a motion to this Court in open session demanding all
translators be constituted as witnesses in support of the defense motion of 09.12.99
item #5. Wherein the Defendant pleaded and it shall be established by interrogation
and records of the various preliminary investigative bodies that Article 213 para (3)
in conjunction with 70 para (1) items 3 and 4 and 90 para (1) were not complied
with together with 213 para (2) of the CPC thus further qualifying the return of this
case according to Art. 236 para (1) items 3, 5 and 7 CPC. They are demanded as
witnesses to elucidate the truth;

3) The translations to the Defendant, in Court, as previously cited in the Defendant’s

31.08.99 petition Ref. incoming #18696 are unreliable and untrue thus not
conforming to their responsibilities. The nature of these deviations from the truth
constituted a violation, at best of Art. 291 para (1) and worst 290 para (2) CC;

4) the Defendant shall seek a renouncement by the said translators and interpreters
were applicable according to Article 292 (1) item 2 CC and the evidence taken by
them and provided the Defendant, including witness interrogations, his statements
and written translation to be disqualified by this Court as evidence in this case on
the grounds of Article 25 para (1) pt 2 and 9 CPC.

LAW

The Defendant understands and appreciates the principle of Article 93 para (1)
CPC which could, if “loosely” interpreted, preclude the constitution of interpreters
and translators as witnesses. However, as “experts” in the English language
ordered by the Court to provide testimony before it. And being liable for that
testimony they can be cross - examined upon it or asked other questions relevant or
related to that capacity. Thus elucidating the truth.

For the Defendant to prove his protest before the Court that he was not presented
materials of the case and that investigators failed to comply with the requirements
of Art. 70 (1) point 4 and 90 para (1) CPC he must summon before the Court the
said experts (translators and interpreters) together with evidence of their
attendance to the facilities of NIS –Nassar and the Prison, if at all.

By establishing the foregoing the Defendant will seek to have their translations
stricken from the record by the Court and the case returned under the respective
article of procedure applicable in the instance.

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 During the conversations held in an operative order we specified that it
is of mutual interest for the Bulgarian and Canadian authorities to
establish the entire criminal activity of Michael Kapoustin in his large
scale financial frauds and the incoming to Canadian and Caribbean
banks of millions of USD from East and West Europe.

Mr. Doornbos submitted a visiting card and the fax message on which
we could ask our questions to the Canadian Economic Police in
Vancouver and they would send a response on what they had done in
an operative order through CSFAOD or NIS.
…[sic] …

108. On 1 April 1996 a fax was received from the Embassy of Canada, Vienna Austria, this
motivated by and subsequent to the Applicant being arrested by authorities of the Federal
Democratic Republic of Germany (“FDRG”) on 7 February 1996 as according to the
information provided Interpol 30 November 1995 by investigator [sledovatel] S. Georgiev.
The fax of RCMP Command Liaison Attaché, S. Sgt. Doornbos as directed to Mr. Roumen
Andreev, Deputy Director, National [Prosecution] Investigative Service reads:

“You will recall that we met in December 1995 in the office of

Mr. Stefan Gueorgiev. Deputy chief of the Economic Division. I
am aware that Kapoustin has been arrested on your behalf in
Germany some weeks ago. I am advised by the police in Sofia

Court's record 10.01.2000, page 13:

"I remind the court that I relied on Kossev to tell the truth. Prosecutor Stoyanov
asks what I have against Kossev. I cite who Kossev is - he is the same person who
received and sustained the investigative case, being an official when he collected
and sustained evidence against the Defendant. I cite the July 1995 letter to Kossev
when the police officer sustains accusations he considered I had to be charged with.
Article 25 CPC forbids a policeman or other person taking part in collecting of
evidence against the accused to participate as a translator. Prosecutor Stoyanov
asks why I did not protest - I did not have these documents at my disposal - I had to
do this myself - I had to establish that Kossev worked for the police from attorney
Lukanov. How could I understand the truth, which was never brought to my
knowledge? Now I know and I protest. It is not right for me to rely on a policeman
who had personal interest in my convicting to translate for me or to submit
translations on my behalf."
The court ruled in response to this the following (page 15, court's record 10.01.2000):
"…[sic]… the objection of the Defendant that during the preliminary proceedings
translation was carried our only by translator Kossev is without merit. By a
subsequent ruling for appointing of a translator since 9 February 1996, sheet 198
of the same volume a fourth translator was appointed under the case…. [sic]."

6
 that the case of Kapoustin now falls entirely within your
jurisdiction.

Could you advise please if your further investigation had

determined [the where, how or] end destination of the money
which Kapoustin defrauded from [Bulgarian investors]

Were you able to identify offshore banking institutions,

account numbers [illegible]

I am asking this as it is a very real possibility, as suggested in

December that some of the funds may have been eventually
transferred to Canada. If you have any information in this regard
please advise. If not we will close our file with respect to
Kapoustin and LifeChoice.”

([ ] and emphasis Applicant’s)

109.On 1 August 1996 particulars of the Applicant’s case and previously only rumoured
Canadian co-operation appeared in interviews with supervising police investigator
[sledovatel] and arresting officer, S. Georgiev and Chief Prosecutor of the Sofia City
Prosecutor’s Office, Nestor Nestorov as published in “Continent” [“Kontinent”] newspaper,
a nationally distributed daily, Prosecutor Nestorov confirming to journalists Canadian and
Government mutual interest in criminally charging the Applicant, the English translation
reading:

“Mr. Nestoriv said ‘that Canada and Bulgaria will struggle [as to] which country is
going to bring action against him [Applicant]’”

110. Among the misrepresentations alleged by police investigator Georgiev to journalists as his
investigations conclusions and the facts provided from Government Canada authorities
were, inter alia, that criminal charges in Canada were unclear; LifeChoice was not a
Canadian corporation; Applicant was convicted in Canada for sexual assault of minors;
18,000,000 USD was transferred from Bulgaria to the Caribbean and the Applicant was
an internationally wanted swindler.

111.On or about 9 August 1996, subsequent to a request by the Applicant the Government of
Canada, Embassy to the FDRG, Bonn, issued a statement to the FDRG in part the “Note
Verbale” reads:

“… [sic] …

The Canadian Embassy would also like to draw to the attention of the
Foreign Ministry an article that was published in the Bulgarian
newspaper Kontinent on 01 August 1996 which quotes the Chief of the
Economic Crimes department of the National Investigation Department,
Mr. Stefcho Georgiev, as stating that Michael Kapoustin ‘committed
sexual assaults against minors, according to information received from
the Canadian authorities’. This statement is not substantiated.

The department of Foreign Affairs and International Trade of Canada

has consulted Canadian and International police authorities, and
confirm there are no records of this nature in Canada regarding Mr.
Kapoustin.

7
 Considering the above, the Canadian Embassy again expresses its
concern with the climate that is being created in Bulgaria by the
authorities in anticipation of extradition, and asks the German
authorities to confirm that they are satisfied that Mr. Kapoustin would
receive fair and equitable treatment within the Bulgarian legal process,
were he to be extradited.

… [sic] …”

112.On 14 August 1995, a fax transmission from RCMP Command Liaison, S. Sgt. D. A.
Doornbos, was received in reply to 31 July 1996 inquiry by Colonel D. Vangelov, Director
“CSCOC [acronym unknown]”, Ministry of Interior [Home] Affairs concerning the firm
“International Pharmaceutical Suppliers [Inc.]”, relevant parts of the text read:

“Further to your fax 389/31.07.96 I passed the information therein

onto our Proceeds of Crime Unit in Vancouver. … The firm … is not/not
known in police indices in Canada … [sic] … For any criminal traces
of this company in Texas inquiries would have to be made by your
prosecutors office with USA authorities.

Aside from the Canada wide criminal warrants [unidentified] of arrest

for Kapoustin [Applicant] Vancouver POC [Proceeds of Crime] has
confirmed that several civil lawsuits have also been filed against
Kapoustin [Applicant], LifeChoice and Don Maxwell in the courts in
British Columbia.

Could you please pass this information to Mr. Stefan Gueorgiev

[Georgiev] of the National Prosecution Investigative Bureau [agency
unknown] and ask him to please advise us when or if any
information is found regarding Kapoustin [Applicant] having
transferred monies to Canada.”

([ ] and emphasis Applicant’s)

113.On 23 August 1996, by way of fax RCMP Command Liaison S. Sgt. Doornbos provided
Colonel D. Vangelov, Director, Central Service for Combating Organised Crime (CSCOC)
(CSBOP) a 6 page investigative report and conclusions by Government of Canada agencies
in Vancouver, British Columbia as prepared by S. Sgt. Vander Graff (Acting) Officer in
Charge, Proceeds of Crime Section at the request of the Government [Bulgaria], the
relevant parts of which read:

“Re: Michael Kapoustin [Applicant]

Proceeds of Crime Investigation

1. As noted … [sic] … the purpose of receiving civil files to determine

information contained in them may be relevant to the criminal
investigations in Canada and Bulgaria with respect to Kapoustin, et al
[others, underlined].

2. … [sic] …
3. … [sic]…
4. … [sic] …

8
 5. ….
6. …

………

13. Detective Desmarais has not approached Don Maxwell and requested
an interview as yet. Maxwell was obviously very involved in the
LifeChoice [Canada] business as well as other business ventures
involving Kapoustin until their apparent ‘falling out’. Maxwell also is
likely in possession of information with respect to the
Kabalarian funds transfer [Ivon Shearing] which, as you know,
was the original precipitator of the Vancouver PCS [Proceeds of
Crime Section] investigation. At present, there does not appear
to be a substantial likelihood of charges [against Applicant]
arising from the Kabalarian [Canadian] side of the
investigation however to properly complete the investigation Maxwell
should be interviewed.

14. The Def. Desmarais is prepared to conduct the interview of Maxwell

and direct whatever questions the Bulgarian authorities may have to
Maxwell, however because of the volume of material in the civil court
registry as well as the complicated nature of the Bulgarian fraud
investigation, some consideration should be given to a Bulgarian
investigator attending Vancouver …[sic]”

114.RCMP Command Liaison, S. Sgt. Doornbos requests in the aforesaid 23 August 1996 fax
that Col. D. Vangelov forward it to police investigator S. Georgiev going on to say in the
fax which reads:

“The attached message (page 2 thru 7) were received from the

Vancouver RCMP Proceeds of Crime Unit. There is some information
therein that may be useful for Mr. Stefan GUEORGIEV of the National
Prosecution Investigation Bureau [obviously NIS] with respect to
Kapoustin and companies and accounts that he had in the Caribbean.

Could this be passed to Mr. Gueorgiev and ask that he in turn pass
any comments he may have on to me directly. I am still very much
interested in any indication he has that any of Kapoustin gains from
the fraud in Bulgaria ended up in Canada.”

115.On 2 July 1997 RCMP Command Liaison, S. Sgt. Doornbos, in response to a telephone
call on 25 June 1997 and a later 26 June 1997 fax, provided a copy of a British Columbia
Civil Action, Applicant as Plaintiff, to replacement police investigator Rumen Kirov, the
letter closes with a request that reads:

“Subject: Michael KAPOUSTIN (Kapoustin) et al

…[sic] …

I am still awaiting in writing, confirmation, information and a Rogatory

Request promised by Mr. Stefan Gueorgiev regarding funds that
Kapoustin transferred to Canada, specifically to the law office of
McCandless, Morrison & Verdicchio.
Please advise this regard.”

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116.On 1 November 1996 a letter was provided the Ambassador, Embassy of Canada,
Bucharest, Romania, concerning the Applicant and his Company [LCIAD]. That letter
occasioned a complaint as often repeated by investors and alleged victims of the
Applicant, the letter is signed by 16 representatives and reads:

“We are writing you on the occasion of the detention of the

Canadian citizen Mr. Mihail Kapoustin.

We are investors in “LifeChoice International” – AD, Bulgaria, whose

executive director Mihail Kapoustin is. We are sincerely concern[ed]
about his health condition. We think that his detention causes serious
damages to the activities of the company and our interests.

We are asking for your help in obtaining a permission to visit Mr.

Mihail Kapoustin, as so far, regardless our repeating requests to the
appropriate authorities, we have no[t] received any answer.”

117.On 23 May 1997 Canada Foreign Affairs received a case note (Note sur le cas) concerning
the Applicant’s arrest/detention, the relevant parts read:

“Consul and HonCon visited subj 15 May. Subj appeared to be in

good physical condition but was mentally distressed as a result
of his continued detention and lack of news concerning setting
of trial date. Legal counsel has advised him that trial date (if
there is to be one) may take another one or two years. It proved
impossible to obtain any corroborating info from investigator’s
office.

Corruption abounds within the prosecutor’s office according to local

news reports. Investigator Georgiev has been removed from office with
a replacement to be named in coming weeks. Whether this will or will
not delay proceedings remains to be seen. Legal counsel advises they
are having access problems as a result of a more rigorous application
of existing law; they will pursue matter of access with prosecutor’s
office. Subj. also complained that since consul’s last visit 18 March he
had been denied access to exercise facility on a regular basis.
Temporary investigator/replacement (deputy?) stated that the problem
would be resolved. HonCon has been asked to follow up on a regular
basis during the period June/September and will forward reports via
cons/[illegible] Bucst.

Subj. has requested CANADA advise him as to what steps/process

may be used to hasten investigation and trial. According to him and
his legal counsel Bulgaria has already been taken to the European
Court of Justice in Strasbourg for a case of illegal detention. Court
decision approx. 2 months was in favor of the plaintiff against
Bulgaria. Subj wishes to follow same route and legal counsel stated
they may file suit in July. Subj has also requested German authorities
be advised that he is not being tried for offences for which he was
extradited and has asked for Germany to assist with having case more
speedily brought to trial. Subj has requested that you keep Mr. Kap
informed of all measures taken.

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 Diplo note which follows was presented to MFA 15 May. Ambassador
Duguay will pursue matter with MFA and Prosecutor during visit
scheduled for 11 – 13 June.

… [sic] …”

118. On 15 May 1997 the Canadian Government presented Bulgarian Minister of Foreign
Affairs a diplomatic note protesting. inter alia, the maximum period of remand [in arrest]
expires 1 June 1997; concerns that detention will be further extended; the investigation’s
already considerable length; that arrest warrants date back to 17 July 1995; the
investigation was conducted as well during Applicant’s detention in the FDRG plus nine
(9) months since Applicant’s extradition; that 26 months to investigate was adequate time
to fix the final charges and order trial or alternatively release Applicant pending same;
further investigation and detention amounts to punishment without trial; all others,
similarly charged in other cases had been released and therefore the Applicant should be
released on bail [security] pending trial.

119.Derek A. Doornbos is employed by the RCMP, an agency and instrumentality of the

Government of Canada, during the period in question as a staff Sgt. Assigned as liaison to
the Embassy of Canada in Vienna, Austria, he is principal author of all correspondence as
affected which the Government [Bulgaria] and responsible for accessing and collecting all
information and data derived in Canada and delivered the Government concerning the
Applicant including but limited to that setout above.

120. During the period of April 1995 to September 1996 there is no evidence that the Ministry
of the Attorney General of Canada (the “Minister”) or the Minister of Foreign Affairs as
being in any way aware of RCMP Command Liaison Officer S. Sgt. Doornbos’ conduct,
intent or purpose to prosecute and arrest the subject of his investigation and seize
documents and assets in Canada and a foreign state [Bulgaria] on account of a criminal
investigation and conclusions established in and on behalf of Canada. Neither is there any
indication that the Minister had controlled, ordered or otherwise condoned the conduct
and the alleged breaches of privacy and Charter rights during the investigative period
arising from the acts and violations of law. The Applicant, in the absence of any
constitutional authorities lawful participation was and is unable to pursue a cause of
action to bring the case presently at bar within the purview of s.32 of the Charter (Mike I
don’t think we need this sentence here – M.).

121. The 7 July 1995 investigative conclusions and request provided the Government as
represented by RCMP Command Liaison S. Sgt. Doornbos correspondence sets out and
qualifies conclusions of the writer [Doornbos] elevated to the status of “official facts” and
“conclusions“ of the Government of Canada without the knowledge, consent or order of his
immediate superiors and in violation of the principles and procedures of law under
“Mutual Legal Assistance In Criminal Matters Act”, Chapter M – 13.6 (RS 1985, c. 30
(4th supp.)) 1988, c. 37, assented to 28 July, to which Doornbos was legally incumbent as
an official of Canada.

122. On 25 July 2000 the family of the Applicant brought civil action in British Columbia
Supreme Court against RCMP Command Liaison S. Sgt. Doornbos and others wherein it
was alleged that Canada Charter of Rights and Freedoms and consolidated Federal and
provincial Privacy Act(s) [R.S.C. 1985, R.S.B.C. 1996] had been breached. No action
against the Government of Canada was possible under civil Action No, S004040,
Vancouver Registry on account of the acts as alleged were “de jure gestionis” and not
“de jure imperii”. Paragraphs 41 and 42 of the claim read:

11
41. “The Plaintiffs have not asserted that the Claim falls within the
purview of Section 32 (1) of the Canadian Charter of Rights
and Freedoms (the “Charter”). Had the Plaintiffs so elected they
would allege breaches of s. 15 (1) which triggered “a situation
that is simply unacceptable” [ see USA v. Arllard (1991), 64
C.C.C. (3d) 159 at p. 522] under s. 12 of the Charter, the acts in
question and consequences thereof offending the Canadian
sense of what is fair, right and just under s. 11 (a) and (d), s. 9,
s. 8 and s. 7 of the Charter in relationship to the nature of the
cause and considerations of comity and security, and after
having granted due latitude and having maintained a perspective
for the reasonable requirements of law enforcement as
demonstrately justifiable in a free and democratic society. The
breaches of Charter rights arise from the violations of law
pleaded herein. This court, in such instance, would have
competent jurisdiction in this district over the subject matter of
this claim pursuant to s. 24 (1) of the Charter. Plaintiffs would
then claim that the officials, agencies and instrumentalities of the
Government of Canada did violate the law promulgated under the
(Provincial) Protection of Privacy Act [R.S.B.C. 1996] Chapter
165, Section 15 (h), S. 30 and S. 28 in conjunction with S. 22 (1);
the (Federal) Privacy Act [R.S.C. 1985] Section 8 (1) and further
re-allege that the acts and transactions of, inter alia,
preparation of false, misleading and slanderous materials; the
sending abroad of same; causing the public distribution and
publication of information protected by law and the preparation
and delivery abroad of official reports and documents was
adequate proof of common law torts of privacy, defamation and
slander as having occurred in this Court’s district.

42. Plaintiffs would further allege that violations of law and the
Charter arise from acts affected by a foreign state, its agents,
agencies and instrumentalities against the person and property
of citizens of Canada, in Canada and abroad, the conduct of said
agents, agencies and instrumentalities, directly and vicariously
causing, inter alia, threats, accusations, menaces and violence
without reasonable justification or excuse; cruel and unusual
treatment and punishment; deprivation of security of person and
right to life; discrimination on account of national or ethnic origin
and religion; disclosures of information to the public harmful to
the individual and a violation of the right to privacy; threats to
safety, mental and physical health; disclosures of information to
the public resulting in undue financial loss and burden;
disclosures of information to the public which were knowingly
inaccurate, incomplete and unreliable, thus damaging unfairly
the reputation of the person(s) referred to therein and having
been compiled and identified as a part of a Canadian
investigation into a possible violation of law in Canada;
disclosures of information to the public which inaccurately,
unreliably and slanderously indicated untrue sexual orientation,
religious belief or association of the person(s) named therein and
Plaintiffs would claim vicarious liability on the part of the
Government of Canada for its participation in aiding and abetting
the violations of law alleged and for having subjected to cruel

12
 and unusual treatment the Plaintiffs. In one instance the liberty
and security of person is denied in an alleged violation of
fundamental and civil rights apparently with the direct
participation of a peace officer and diplomat of Canada.”

123. The interaction between relevant Canada Law, police and judicial agencies and
instrumentalities of Canada and those of Foreign Governments are regulated by the
Mutual Legal Assistance In Criminal Matters Act.

124.Beyond Charter requirements the conduct of police agencies [RCMP] or instrumentalities

[Embassy of Canada], and the exchange of information, investigative actions and reports
[to Bulgaria] are setout at the provincial [British Columbia] level in those laws
promulgated under the Privacy Act [R.S.B.C. 1996] Chapter 165, Section 15(h), s. 30 and
s. 28 with s.22.

125. During the period in question (1995 – 1997) there were no rules for co-operation in police
investigations with foreign states. A new Criminal Procedure Code (CPC) was promulgated
in S.G. 64/1997 according to which agencies or instrumentalities of Government were
required to conduct their co-operation in police [criminal] investigations with foreign
states within the procedural rules of Chapter Twenty Two Section VI.

126.According to national law preliminary proceedings [investigations] to an alleged crime are

instituted only upon qualification of certain criteria and at the order of a prosecutor with
qualified jurisdiction. The relevant Articles are setout in Part two, Chapter twelve, Section
I and II of the Criminal Procedure Code.

127.Government control over information or data concerning the results of a preliminary

investigation are regulated by CPC Article 179.

128.It is incumbent upon Government agencies or instrumentalities to “forewarn” an

enterprise [LCIAD] if the conducting of certain activities or the acts of its employees or
officials establish reasons or conditions suggesting possible indictable activity [CPC Article
184].

129. Alternatively where insufficient data exists to effect a preliminary proceeding, the
Ministry of Interior [Home] Affairs may conduct their own inspection inside pendant of
and unhindered by the aforesaid national law as provided by Article 190 of the CPC in
effect at the time.

130.In all instances it is apparent from national law that preliminary “inspection” and
preliminary “proceedings” afford Government agencies or instrumentalities equal power,
in the former instance unsupervised or judicially controlled, in the later supervised and
controlled by a prosecutor as appointed to each particular instance according to
appropriate jurisdiction and venue as setout in Articles 175 and 176 of CPC.

131. An investigation is to be instituted only subsequent to a “successful” preliminary inquiry

and any later proceeding instituted by an instrumentality of the Main Public Prosecutor’s
Office, investigation is obligatory as charged [Applicant] under Article 203 Criminal Code
(CC) and is to be investigated by the National Investigative Service, Articles 195 and 196,
CPC in effect in 1995.

13
 Interpol

132. The operational exchange of information between police agencies or instrumentality of

Government may be conducted between offices of Interpol, in the absence of a treaty, an
agreement or other arrangement, may be conducted, to a limited degree and in
compliance with the national legislation of the respective parties and international
law.

133. As of 1990 offices in member countries are known as National Central Bureaus (NSB’s)
and in 1990 consisted of more than 150 national law enforcement agencies, Canada for
some time and effective Government membership in the last years.

134.A 1988 United States Department of Justice manual describes Interpol as:
“…something of a legal curiosity. It [Interpol] conducts inter-
government activities, but it is not based [organized] on an [any]
international treaty, convention, or similar legal instrument [legislated].
It is founded on a constitution…never submitted for ratification by [the
respective] governments.”

135. On July 4th 1989, 13 members of the Council of Europe issued a motion calling for an
extensive investigation of Interpol. Some extracts from this motion include:

• Interpol operates internationally with no governmental oversight

from any of its member organisations.
• Interpol provides dossiers, on request, via computer interlink, to
police organisation in member countries around the world, amongst
which are Iran and Libya who have shown to be involved in
international terrorism
• Interpol organised as a private organisation by police officers,
never submitted its constitution for ratification by any government,
has located its headquarters in France where it has been granted
immunity from the legal process by the Government of the French
Republic thereby placing the organisation above the laws of any
land, not being legally accountable for its acts.
• Individuals and organisations have unable to rectify the files in
them that Interpol, while having conclusively proven they were
false, has sent uncontrolled across borders, secretly showing them
to judges, leading in several cases to wrong imprisonment of the
civilians involved.
• Interpol insists that its highest priority is stopping the flow of
international trafficking, while in recent years. Interpol officials
have been reported as being involved in drug trafficking in several
South American countries and possibly others.

The motion then calls for the following:

a) The status of Interpol with the Council of Europe should be

reviewed;
b) An inventory of transgressions committed by Interpol should be
drawn up;

14
 c) Effective ways to control the International Criminal Police
Organisation, Interpol, in a democratic fashion should be
considered …so Interpol hereafter will be accountable for its acts;
d) Strict measures should be elaborated and recommended to ensure
that a refusal by Interpol to reveal and rectify files on request by
an individual or organisation is scrutinised by an independent,
democratically chosen committee that controls Interpol…”

Facts, Arrest and Extradition

136. On 7 February 1996 Applicant while in transit at Frankfurt International Airport to his
family in Kavala, Republic of Greece, was placed under arrest at the request of Interpol by
airport police authorities of the Federal Democratic Republic of Germany (“FDRG”) and
remanded in accordance with Article 16 § 1, European Convention on Extradition
(“ECE”).

137. On 2 September 1996 Applicant was extradited by the FDRG to the Republic of Bulgaria
to face trial on accusations and charges embodied in a 28 November 1995 and 12
February 1996 Order(s) of Detention [warrants of arrest] issued by one police investigator
S. Georgiev, National Investigative Service (“NIS”) and authorised by supervising
prosecutor M. Stoyanov, Sofia City Prosecutor’s Office (“SCPO”) as presented by the
Government in its effort to comply with Article 12 § 2 (a) of ECE.

138. Applicant and defence counsel [FDRG] protested before the High Regional Court
[Frankfurt] that the respective Orders of Detention [arrest] submitted by the Government
as issued by a police investigator and authorized by the case prosecutor neither complied
with Convention Article 5 § 1 abstracts (b), (c) and (f) or Article 6 § 1 on the grounds that,
inter alia, the arresting police investigator and prosecutor were not “impartial”; the order
did not originate from a “competent legal authority”; defence documental evidence refuted
factual claims alleged as corpus delicti by Government; the Applicant in not having been
first heard or subpoenaed by the Government had violated its national law; the
documents submitted by the Government under Article 12 § 2 (a) ECE had not been
issued by a court or magistrate (Amtsgericht) and therefore were incompatible with
German basic and international law; that a possible sentence of 30 years on an
accusation of misappropriation of a private company's assets was in contradiction to
European logic and a situation that is simply unacceptable to the European sense of what
is fair, right, just and humane; and the circumstances were criminally aggravated by the
misrepresentation of the Government as embodied in the German text of the Orders of
Detention [Arrest] as prepared by it and presented to the FDRG, wherein the Government
represented police investigator [(sledovatel), (untersuchungsführer)] S. Georgiev knowing
and fraudulently as a magistrate [untersuhungsrichter] in order to secure extradition of
the Applicant.

139.On 26 July 2000, the Applicant, in a civil proceeding commenced by his wife and son
before the British Columbia Supreme Court claimed an allegation of scienter against [civil
defendants] police investigator S. Georgiev, SCPO prosecutor M. Stoyanov and others, the
scienter allegation reads:

82. This alleged violation of law arises from the November 28,1995
“orders of detention” produced by Defendants Georgiev and
Stoyanov at the direct or indirect inducement of Defendant
Doornbos, whereupon and subsequent to the Defendant
Georgiev did on November 30, 1995 and again on Feb. 12, 1996

15
 provide to Interpol Sofia requests of which the substantive
content was known by Defendants to be false and principally
grounded upon the unconfirmed allegations, conclusions and
slanderous representation of Defendant Doornbos, thereby
directly and indirectly inducing agencies and instrumentalities of
the Federal Democratic Republic of Germany (hereinafter
“FDRG”) to wrongfully arrest Plaintiff Kapoustin at Frankfurt
International Airport on Feb. 7th, 1996. It is alleged the ensuing
208 days detention of Plaintiff Kapoustin by the FDRG and his
subsequent handing over to Defendant Bulgaria and additional
1405 days of captivity, did permit, facilitate and aid the
Defendants in proceeding with their malfeasance, slander,
planned extortion and other violations of law.

83. Defendants were no longer obstructed or otherwise hindered by

the Plaintiffs who, in fear for the safety and life of Plaintiff
Kapoustin and at the request of agencies of the Government of
Canada, ceased to interfere with or publicly protest the unlawful
acts of the Defendants.

84. The alleged herein unlawful arrest of Plaintiff Kapoustin

demonstrates the Defendants acted with scienter in that: they
knew the “orders of detention” issued and later statements
made by them as officials acting in the name of Defendant
Bulgaria were materially false, misleading and procured by
them with no regard for the procedures for so doing as
promulgated under Bulgarian domestic law; Defendants
Georgiev and Stoyanov knew their statements as “officers of
law” and “prosecuting authorities” of the Defendant Bulgaria
would not be subjected to any proper legal tests by the FDRG as
to the merits; Defendants knowing fully well the FDRG unwilling
and disinterested to investigate Plaintiffs’ attorneys’ claims as
made to the alternative; knew that on account of the official
slanders made by Defendants as alleged and proven herein co-
mingled with the Jewish ethnic and Russian origins of Plaintiff
Kapoustin and on account of Defendant Bulgaria
misrepresenting in its Feb. 16, 1996 Request for Extradition the
residency and citizenship of Plaintiff Kapoustin as Bulgarian the
FDRG in a common discriminatory conduct of its courts would
participate and acquiesce to the Plaintiff Kapoustin’s arrest,
detention and extradition without exercising the required due
diligence the FDRG may otherwise have undertaken, had
Kapoustin not had Jewish and Russian ancestry and the therein
alluded to Bulgarian residency and citizenship.

85. It is alleged the “orders of detention” were known to the

Defendants and FDRG to be primary violations of prevailing
international law and practice. The “order of detention” could
prove to the Defendants and FDRG a legal obstacle to their
planned malfeasance and extortion, if tested by a court of the
FDRG and Defendants’ scienter discovered.

86. The said documents, in and of themselves, were insufficient and

not in compliance with the prevailing international legal

16
 precedents for arrest, detention and extradition by a third party.
The Defendants to give effect to their unlawful intent to gain
bodily the Plaintiff Kapoustin undertook to and could engage in a
fraudulent scheme due to their official control over the content of
documents and statements made to the FDRG as translated and
officially transmitted by them in the German language.

87. The Defendants engaged themselves in providing to the FDRG

materially misleading misstatements with a reckless disregard
for the falsity and misleading nature of the information which
they caused to be disseminated. In particular Defendant
Bulgaria knew and should have known that Defendant Georgiev
was not a “hauptuntersucungsrichter” (“chief” or “presiding
investigative judge”) or “untersuchungsrichter” (“investigative
judge”) as was fraudulently and misleadingly set out in the
“orders of detention” as well as other documents and statements
made to the FDRG.

88. Defendants to attain their unlawful objectives and to facilitate

the violations of law herein alleged, knowingly disregarded or
failed to correct to the FDRG these misleading misstatements or
to disclose to the FDRG that Defendant Georgiev was in fact an
“untersuchungsführer” (police “investigator” (“sledovatel”))
and did not in this, his official capacity, meet the internationally
recognized criteria as an “officer” authorized to exercise “judicial
power” to order the deprivation of liberty or extradition of
Plaintiff Kapoustin. Case law prevailing at the time (see
Schiesser v. Switzerland judgement, 4 Dec., 1979, ECHR) and
recent decisions ( see Assenov and others v. Bulgaria, 28
October 1998 and Nikolova v. Bulgaria, 25 March 1999
judgements, ECHR) have held that such “officer” must satisfy
certain conditions providing a guarantee to the detained person
against arbitrary arrest. Thus the “officer” must be independent
of the executive and of the parties.

89. Defendants Georgiev and Stoyanov who issued the “orders of

detention” of November 28, 1995 and February 12, 1996 and
which constituted, in totus, the grounds for arrest, detention
and extradition by the FDRG, would not meet any criteria of
international law had not the Defendants participated in the
fraudulent scheme arising by virtue of the materiality of their
misleading misstatement in documents provided by them to the
FDRG.

90. Defendant Georgiev had no independence or impartiality (see

Huber v. Switzerland judgement 23 October 1990 and Brincat v.
Italy judgement 26 November 1992, ECHR), nor did he
undertake to attempt to hear the Plaintiff Kapoustin in person
and to review, by reference to legal criteria, whether or not the
“order of detention” could be justified by the prosecution
represented by Defendant Stoyanov. In Assenov and others v.
Bulgaria the ECHR found, inter alia, that neither an
investigator (“sledovatel” or “untersuchungsführer”) or
prosecutor who had, at first instance, approved the “order of

17
 detention” could be considered to be the “officers” authorized by
law to exercise judicial control within the meaning of prevailing
international case law. The facts of the alleged violations herein
bear no material difference to the decisions referenced above.
Defendant Georgiev did not have the power to make a decision
as to Plaintiff Kapoustin’s arrest, detention and extradition and
to therefore bind the FDRG to comply with his request nor can
Defendant Stoyanov who approved the “orders of detention” be
considered an “officer(s) authorized by law to exercise
judicial power”.

91. Under prevailing international law Defendant Stoyanov, as

prosecutor, was not sufficiently independent or impartial for the
purposes of law since he could and in fact continues to act as a
subsequent party to the proceedings instituted by him and
Defendant Bulgaria against the person of Plaintiff Kapoustin and
did control at the time the assets of the Plaintiffs.

92. This same principle applies to statements submitted by the Main

Public Prosecutor of Bulgaria, Ivan Tatarchev, on February 16,
1996 to the FDRG, the contents of which are grounded in their
entirety upon the fraudulent and unlawful actions of the
Defendants as alleged herein and are therefore not materially
different although issued independent of the Defendants.

93. During the aforesaid period the Defendants carried out a

continuous plan, scheme and course of conduct which was
intended to and throughout the period; did deceive the public
and the Government of the FDRG as alleged hereto and so
caused the FDRG to deeply humiliate the Plaintiffs by unlawfully
arresting, detaining and extraditing Plaintiff Kapoustin, by so
doing the FDRG did directly and indirectly, harm and injure the
Plaintiffs in furtherance of the unlawful scheme, plan and course
of conduct the Defendants who undertook the unlawful actions
set forth herein.

94. The Defendants employed devises, schemes and artifices to

defraud and slander; made untrue statements of material fact
and/or omitted to state material facts necessary to make the
statements not misleading; engaged in acts, practices and a
course of official conduct which operated as a fraud and deceit
upon the Plaintiffs, the FDRG and the public, which included the
physical and mental torture of the Plaintiff Kapoustin, emotional
and physical anguish of other Plaintiffs. Defendants acted in an
effort to humiliate the Plaintiffs and to gain for the Defendants
and/or others the Plaintiffs’ assets in order to as well protect the
Defendants from discovery and prosecution; to gain, as agents
for Defendant Doornbos, a reward and benefit, for affecting acts
vicariously relating to affairs of his principal, Canada; to
enhance their official positions and to secure the substantial
compensation and prestige they hoped to obtain by so doing.

95. The Defendants did as well conceal evidence of crimes against

justice, humanity and the person of the Plaintiff Kapoustin as
known by them and in evidence. In abnegating their

18
 responsibility to law and failing in their joint and several
incumbency to report new crimes, the Defendants jointly and
severally become culpable and liable for the injury and harm
caused the Plaintiffs as setout herein.

96. Defendants, individually and in concert, directly and indirectly,

by use of their official office and the means and instrumentalities
made available to them, engaged and participated in a
continuous course of conduct to conceal their activities and their
employment of official devices of the Government of Canada in
British Columbia and elsewhere, the schemes and artifices of the
Government of Bulgaria as used by them to defraud officials of
the FDRG and public while in possession of material facts and
information adverse to their objects and so engaged in the acts,
practices and course of conduct as alleged herein in an effort to
encourage others to believe in the Plaintiff Kapoustin’s guilt and
likely substantial financial benefits to be realized by others from
the Plaintiffs’ assets.

97. Defendants’ acts included, inter alia, the making of, or the
participation in the making of, untrue statements of material
facts and omitting to state material facts necessary in order to
make the statements as they were made, not misleading, as set
forth more particularly herein, and engaged in practices and a
course of conduct which operated as a fraud and deceit upon the
public, the Plaintiffs and the FDRG and a slander upon the
Plaintiffs’ honor and reputation.

98. The individual Defendants’ primary liability and official personal

liability arises from the following facts: they were high level
officials of the Defendant Bulgaria and the Government of
Canada; by virtue of their responsibilities and activities as senior
officials the individual Defendants were privy to and participated
in the coercion, development, preparation, delivery and
enforcement of official documents and statements; each of the
individual Defendants enjoyed significant personal contact and
had access to other officials, agencies and instrumentalities of
Defendant Bulgaria and the Governments of Canada and the
FDRG; the individual Defendants were aware at all times and
had in fact facilitated and effected that there would be direct and
indirect dissemination of humiliating, slanderous and untrue
data on the Plaintiffs to the public and official agencies and
instrumentalities of foreign governments which they knew to be
slanderous. Defendants recklessly disregarded and encouraged
the information’s materially false and misleading nature.

99. The Defendants had actual knowledge of the slanders,

misrepresentations and omissions of material facts set forth
herein, or acted with reckless disregard for the truth in that they
failed to ascertain and to disclose such facts, even though such
facts were available to them. Such Defendants material
misrepresentations and/or slanders and/or omissions were
done knowingly and recklessly and for the purpose and effect of
concealing their violations of law, malfeasance and actual

19
 motives from the public, officials of the Governments of Canada
and the FDRG and the Plaintiffs. As demonstrated by the
Defendants slanderous overstatements and misstatements of the
facts through the periods in question, the Defendants, if they did
not have actual knowledge of the misrepresentations, slanders,
malfeasance and omissions and other violations of law alleged,
were in the least reckless in failing to obtain such knowledge.

100. Defendants have deliberately refrained from taking those steps

necessary to discover whether those documents and statements
were false or misleading. Individual Defendant’s ignorance of
the fact that other Defendants as officials of the Defendant
Bulgaria and Government of Canada were providing directly or
indirectly false and misleading documents and statements and
relying upon the individually responsible Defendants’ integrity
as an official whose representation must therefore by default be
truthful even in the presence of materially adverse information
provided by the Plaintiffs and Plaintiff’s attorneys, provides no
excuse or relief from liability or culpability for the
consequentially injuries and damages suffered by the Plaintiffs
as a direct and proximate result of the Defendants’ wrongful
conduct or willful ignorance.

101. At all relevant times, the Defendants, individually and in concert,

directly and indirectly, engaged and participated in a continuous
course of action and conduct whereby they knowingly provided
public representations which they knew to be materially false
and/or misleading and would cause direct personal injury and
financial harm to the Plaintiffs. This continuous course of
conduct resulted in the publishing and electronic transmission of
media statements and official documents that were false,
misleading and slanderous as to their content.

102. The Defendants’ conduct materially influenced the market place,

financial institutions, business associates and the public against
the Plaintiffs by inciting a rancor and enmity, which has caused
the Plaintiffs’ emotional anguish and a deep humiliation, from
which they are unable to recover. These acts of the Defendants
operated as a fraud and deceit upon the public and business
associates of the Plaintiffs causing financial injury and loss.

103. The Plaintiff Kapoustin and his business activities in Bulgaria,

prior to his arrest were the sole financial support for his family.
The unlawfully seized property and business represented all the
assets of the Plaintiffs of which the Plaintiffs Tracy and Nicholas
are owners, beneficiaries and heirs to the income and value
represented and upon which they were dependent.

104. The Defendant Bulgaria is a direct participant in the wrongs

complained of herein. The individual Defendants are liable as
direct participants and as controlling persons of the wrongs
complained of. Because of their positions and authority as
officials of the Defendant Bulgaria, and the Government of

20
 Canada the individual Defendants were able to, and did, directly
or indirectly, control the content of the public statements relating
to the Plaintiffs.

105. The Individual Defendants did cause or control the issuance of

public statements containing the slanderous and misleading
representations alleged herein.

106. The Individual Defendants had actual knowledge of the facts

making these public statements and official documents false,
misleading and slanderous or acted with reckless disregard for
that they failed to ascertain and to disclose such facts, even
though same were available to them.

107. As a result of the Defendants’ malfeasance, slander and

unlawful arrest of Plaintiff Kapoustin, his son, now aged 7
(seven) years, has been wrongly and unjustly deprived for 5
(five) of those years of the love and affection, nurturing care,
guidance, companionship and comfort of a father during his
young life. The consequences to Plaintiff Nicholas of his
depression, confusion and anxiety are best expressed in the
physical manifestation of his stress as expressed by contracting
Diabetes Type I at the age of 4 (four) years.

108. The actions of the Defendants have reduced the natural life
expectancy of Plaintiff Nicholas and placed a burden upon a
young life, which is immeasurable in financial or material terms.
The Plaintiffs shall be weighed with the expense of special
medical attention and care and a lifetime of anxiety over the
health and well being of their 7 (seven) – year old son.

109. The unlawful seizure and destruction of the Plaintiffs’ property

and assets by the Defendants has further denied Plaintiff
Nicholas his rightful inheritance and future opportunity.

110. As a result of the Defendants’ malfeasance, slander and

unlawful arrest and inhuman treatment of the Plaintiff
Kapoustin, his wife of 12 years, the Plaintiff Tracy has been
denied the love, companionship, emotional and financial support
in assistance towards living expenses and comfort of a husband
and friend. The public humiliation of being forced upon the
public dole and the damaged reputation and loss of income and
property have caused Plaintiff Tracy to accept social and
financial aid from family and friends in order to care for the
Plaintiffs’ diabetic son and to finance her fight to free her
unlawfully detained husband.

111. The extreme stress, personal anguish and anxiety born of the
demands of what is an unjust and undeserved burden have
physically manifested themselves in ill health requiring constant
medication and the regular attention of physicians, thus causing
added financial hardship upon the Plaintiffs.

112. As a result the Plaintiff Kapoustin’s elderly parents Robert and

Tatiana, due to the humiliation and anxiety they suffered from

21
 the Defendants’ malfeasance, slander, unlawful arrest and
inhuman treatment of their son, with attempts by the Defendants
to extort money from them and the threats made in the process
thereof against their and their son’s safety and lives as the
alternative to non payment, caused Robert and Tatiana to suffer
grievous personal anguish and anxiety which proved to be the
direct cause of the physical and mental deterioration and illness
of Plaintiff Kapoustin’s 67-year-old mother Tatiana, whose failed
health has placed her under ongoing institutional care and
requires the constant attention of her husband, Robert, who at
78 years of age has had to bear the emotional and financial
burden of his wife’s care with that of the Plaintiff Kapoustin’s
sister Sonia Jordan, neither of whom, in the absence of the
Plaintiff’s support are able to financially sustain the care of
Tatiana and themselves and their effort to protect their son and
gain his freedom.

113. These unjust emotional and material demands have caused the
Plaintiff Kapoustin’s elderly parents to lose their home of twenty
years, which to them has been second to the resultant loss of the
love, care, companionship and affection in the winter of their
lives of the son unlawfully denied them.

114. As a result of Plaintiff Kapoustin’s deep humiliation, damaged

public and business reputation and the deep emotional and
physical trauma caused by the Defendants in their five year
unlawful imprisonment of him and the Defendants’ unlawful
seizure, exploitation and depletion of the Plaintiffs’ assets, the
Plaintiff Kapoustin is not now nor shall he ever be able to realize
for the rest of the years of his natural life the support of his
family or the possibilities, business success, personal
aspirations and fulfillment he might have otherwise realized as
a father, husband and businessman, which have been and have
forever been denied him by the Defendants.

115. As a result the Plaintiffs have jointly and severally incurred

certain special damages, loss and expenses and further loss
and expense in the future, particulars of which will be provided
on request.

Accusations and charges

140.On 27 October the ruling for institution of preliminary proceeding was sent by SCPO to
the National Investigative service. The letter reads:

"According to the direction of the chief of department "Investigative" at

the Main Public Prosecutor’s Office of the Republic of Bulgaria we send
you our prosecutor's correspondence No 3097/95 together with the
Ruling for institution of preliminary proceeding to conduct the inquiry."

22
 Stefcho Georgiev was appointed by the chief of department Alexandrov as an investigator
(sledovatel) under the case on the 30 October 1995.

141.On 28 November 1995, police investigator (sledovatel) S. Georgiev brought a charge of

embezzlement qualified according to Criminal Code, Article 203 §1, the accusation reads:

" I Stefcho Georgiev, prosecution investigator upon the Ntional

Prosecution Investigation Service, Sofia, today 27th day of November
1995, in the city of Sofia and with referring to the evidences pertinent
to the criminal case registered under file number 195/1995 in the
register of the National Prosecution Investigation Service, have
established that the person being investigated, named MIHAIL
KAPOUSTIN, born November 06, 1952, in Canada, address Sofia, 96-
A Rakovska" str., fl. 1 - central office, has committed criminal offences
(offences to be specified - where, when and how each of them has
been perpetrated). In his official capacity of executive director of the
company LifeChoice International Share Holding Company [LCIAD]
and with the conditions of constantly perpetrated crime, for the period
of time April 1, 1993 till August 1, 1995, has embezzled the corporate
money as placed in his care and running under the said capacity of
him, and has misused of this money for his own or of another personal
benefit, this embezzlement in the sum of more than USD 5 mln. Having
an especially great value and representing an especially aggravated
case.

The committed offence is found under Article 203, § 1 ref. Article 26,§
1 of the Penal [Criminal] Code.

and with considering the degree of the danger to society of the

offences committed, the personality of the perpetrator, the possibility of
his non-attendance and other facts: the great degree of the danger to
society - damaged in the amount of more than 5 mln. USD were
thousands of Bulgarian citizens - investors of the LifeChoice
International Share Holding Company [LCIAD], Sofia and in
compliance with the prescriptions of the p.5 of the Directions Letter of
the District Attorney of Sofia [Sofia City Prosecutor's Office - phonetic
SGP - Sofiiska Gradska Prokuratura] according to Articles 146 - 148,
152, 207, 209, 212,of the Penal Procedure Code [Criminal Procedure
Code (CPC)]

HAVE RULED:

1. To bring a charge against MIHAIL KAPOUSTIN as accused for the

criminal offences stated herewith as per Article 203, § 1, ref.
Article 201, ref. Article 26 § 1 of the Penal Code [Criminal Code] of
Republic of Bulgaria.
2. …[sic]

142. The charge and accusation of embezzling money and property of LCIAD was brought [on
account of the lawful departure and absence of the Applicant] in absentia [Articles 217a
and 268 § 3 and § 4, Criminal Procedure Code] but only subsequent to the appointment
by NIS investigator S. Georgiev of former deputy prosecutor, later practicing attorney, Ms

23
 Villiana Gaganishka - Stoycheva2, as Applicant's public defender, and then, subsequent to
her written endorsement of the said 28 November 1995 Order of Detention [arrest] did
SCPO Prosecutor M. Stoyanov dutifully order the arrest and detention of the Applicant.

143.On 30 November 1995 NIS investigator Georgiev directed a request to Interpol as

predicated under Criminal Procedure Code Article 133 to search with objective to arrest
and extradite the Applicant on account of the 28 November Ruling to bring a charge of
embezzlement as qualified under Criminal Code Article 203 para (1). The data provided to
Interpol as relevant to this Application reads:

"We dispose of the following established and concrete data:

- …[sic];
2
Article 69 § (1), Criminal Procedure Code states a defence counsel shall be appointed by an accused [the
Applicant]. Further Article 72 § (2) of the Code specifically expresses that defense counsel may only be replaced "at
the request or with the consent of the accused". At no time had the Applicant requested the replacement of his
attorneys retained by LCIAD [Mila Popova Bogdanova, Plamen Yalnasov, et al] and acting as well on the
Applicant's direct behalf in all matters in Bulgaria, neither can an attorney voluntarily withdraw or be removed from
acting on the Applicant's behalf, Article 71 of the Code reads: "The defence counsel may not renounce the accepted
defence, except where it becomes impossible to carry out his or her obligations for reasons beyond his or her
control. In the latter case the defence counsel shall be obliged to notify the accused in due time." Alternatively
Article 70 § (3) of the Code considers where a "respective authority shall be obliged to appoint" a defense counsel,
such an occasion arising when, inter alia, a possible punishment of not less than 10 years; an accused does not speak
Bulgarian; the accused has physical or mental disabilities or the case [investigation or inquiry] is to be conducted in
his absence. It is obligatory under Article 21 of the Law on Advocacy (Zakon za Advokaturata) in such an instance
that the attorney be appointed not by the investigation, police officer (sledovatel) Georgiev, as is the case under the
Applicant's instance, but rather by the respective [Sofia] Bar Assocoation (Sofiiska Advokatska Kolegia - SAK).
Upon the foregoing facts, and others, the Applicant did subsequently on 22 December 1999 lodge a complaint of
criminal misconduct and malfeasance against Advocate Stoycheva - Gaganishka, which reads:
"I formally lodge this protest with you and plead to you as the competent review
body responsible to investigate and rule upon the procedural, professional and
ethical conduct of its members. I request an investigation of Ms. Villiana Stoycheva
- Gaganishka, attorney at law with last known address 5 Trapezitza St., and home
address 14, Sava Mihailov St., who had accepted inappropriately and outside of her
professional competence an appointment as my "official defence counsel" in
November of 1995. Attorney Gaganishka clearly assumed a responsibility to act on
my behalf, without my knowledge or consent and did so with a clear intention only
to facilitate my arrest and not to fulfill her ethical obligations to me. The general
details of her professional misconduct are cited in the attached letter as forwarded
to her by registered post.

I am sure there is no need to remind the respected body of the Sofia Bar Association
of the professional conduct expected of its members as setout in Article 74 of the
Criminal Procedure Code of Bulgaria. And the Basic Principles on the Role of
Lawyers adopted by the Attorney Act [law on Advocacy - Zakon za advokaturata] of
Bulgaria and cited in the Eight United Nations Congress on the Prevention of
Crime and the Treatment of Offenders on 7 September 1990. Subsequently endorsed
by the General Assembly in Resolution 45/121 of 14 December 1990. Most
particularly I draw your attention to Article 6, 9, 13 and 15 and the disciplinary
proceedings cited in Articles 26 through 29 of that resolution which are directly
applicable to the protest filed.

In addition I submit a copy of the Notice to Her HonourJudge Mitkova of the

circumstances surrounding my case wherein I have cited that there existed a total
absence of any defence as a consequence of the refusal of the setout therein
attorneys to challenge state officials who abused my rights in obtaining my arrest,

24
 - Some data [unidentified] exist that MICHAEL KAPOUSTIN has
developed his “Pyramidal structures” in the territory of five countries –
Canada, USA, Bulgaria, Greece and Georgia;
- … [sic] …;
- We dispose of data that MICHAEL KAPOUSTIN and his wife TRACY
KAPOUSTIN live at present in Greece in the town of Kavala in an
apartment on 14-B,Plio St. he has bought a villa on 16,Yadras St.
- Being an executive director (Chief Executive Officer) of Life Choice Int.
AD in Sofia his last address in Sofia is Sofia, 96-A,Rakovski St., first
floor. He has offices in Sofia on 16,Knyaz Batemberg St., entrance V,
fl. 6, apt. 27 as well as on 3,Krakra St. – premises of the National
Institute of Infectious and Parasitic Diseases. Such an office he has got
in Plovdiv on 52,Ruski Blvd.
- The investigation under inv. case 195/95 as per the schedule of the
National Investigation Service is being carried out in the absence of the
accused MICHAEL KAPOUSTIN at present by virtue of art. 217a and
under the conditions of art. 268, par.3 and 4 of PPC of Bulgarian
Republic.
- We received data from the Central Service for Fight against Organized
Delinquency, their ref. 3233/July 17th,1995 that the Canadian police
in Vancouver are interested in the international malfeasant activities of
M. Kapoustin and his subsidiary companies, some of them have been
registered in the commercial register of British Columbia province since
1991, and in the following persons:

1. KARIN UTE BERGSON, born on July 15th,1942

2. DONALD MAXWELL, born on Oct. 23rd,1950
3. RADKA K. MILANOVA, born on Jan.1st,1954, living in Vancouver,
Canada
4. ARTHUR L. MORRISON, born on Jan. 12th,1935
5. MARY SLOAN, born on may 5th,1947
6. IVON SHEARING, born on April 12th 1928 – an associate of
KAPOUSTIN and MAXWELL in their questionable operations at the
Vancouver stock exchange in Canada. At present SHEARING is the
manager of a pseudo-religious organization called “CABALISTIC
PHILOSOPHY”. It was found out that in 1994 only 16 million USD had
been transferred to several bank accounts of SHEARING. Most of the
transfers came from Western Europe. Other accounts of SHEARING
with local banks in Vancouver are being credited with amounts of
about 100.000 USD per day.

Most probably large-scale “money laundering” operations are

going on. The Canadian source of this information supposes
that it is most likely that a considerable part of these amounts
come namely from the funds accumulated in Bulgaria by

extradition and allowing subsequent mistreatment while here.

I cannot ascertain whether their conduct is a consequence of fear, malfeasance,

conflicting interests, disinterest or incompetence. In either instance their
professional ethics should have required them to resign from my case. Instead they
have severely damaged my defence. Accordingly I seek through your respected
organization redress against those responsible."
To date no action has been taken by any respective Government authority.

25
 KAPOUSTIN through the large-scale financial frauds carried out
by his pyramidal structure “LIFE CHOICE”. The transfers are
effected through Caribbean banks.

Further to the aforesaid we ask for your assistance before Interpol for
arranging of bilateral meetings with the Canadian competent
authorities aiming at conveying information of mutual interest to
both parties.

At the end we ask you for urgent and active search of the accused
MICHAEL KAPOUSTIN through the structures of Interpol throughout
the world. There are data that the latter has circumvented Bulgarian
and Canadian Tax Legislation by cash transfers of large amounts in
USD and DM.

A conclusion should be drawn that through the ”pyramidal structure”

of Life Choice and by registering of “dead souls” as clients of the latter
large amounts of “dirty money have been laundered”.

144.At all material times during the period in question the Applicant's permanent residence
and legal counsels in Canada, McCandless, Morrison and Verdicchio, were known to
Canadian authorities in liaison with the agencies and instrumentalities of the
Government, who as well were aware, in addition thereto, of the Applicant's home at 14-B,
Plio St., Kavala, Greece and corporate offices of LifeChoice S.A. at 9, Idras St. Kavala,
Greece as was clearly evident from LCIAD corporate documents made available to the
Government, in addition to the foregoing the Government, as its agencies and
instrumentalities were aware of, having been informed as to and had in fact interviewed
legal counsel of the company and the Applicant, thereby having made it incumbent to
subpoena the Applicant under the national Criminal Procedure Code Article 268 para (3)
and para (4) to first demand his attendance as is obligatory under domestic law setout in
conjunction with Article 217a of the Code.

145.At no material time during the period in question did the responsible agencies or
instrumentalities of the Government undertake to subpoena or otherwise attempt to notify
the Applicant as required and setout in Article 158 CPC and in the absence or refusal of
an accused or summoned person serving may be effected under Article 160 of the Code.

146. On 15 December 1995 apparently after NCB Interpol refused the request of NIS
investigator Georgiev a second request to the Head of NCB Interpol Sofia, Mr. Hristov was
brought by MPPO Prosecutor Doichev as an order to be directed and followed by Interpol
without consideration as to the merits, quality or lawfulness of that request, in so doing
the MPPO demanded Interpol NCB Sofia to apparently abnegate what independence, if
any, as international organization it might possess, the order reading:

I ORDER:

NCB “INTERPOL” – MHA to inform the bureaus of “INTERPOL” of the

member countries in order to trace (discover) MICHAEL KAPOUSTIN.
After finding him the latter to be detained (arrested) because of the
crime committed by him in the Republic of Bulgaria and the Bulgarian
party to be notified about this in order to send the necessary
procedural documents to extradite MICHAEL KAPOUSTIN to the
Republic of Bulgaria.

26
 You are requested to notify the Main Public Prosecutor’s Office after
effecting the actions in connection with my order.

147. On 9 January 1996, NCB Interpol Sofia, on account of the direct order of MPPO, Republic
of Bulgaria issued a "red notice" directing other member states to effect the detention of
the Applicant on the grounds of, inter alia, Republic of Bulgaria Criminal Code Article
203 for misappropriation; a punitive measure of 10 to 30 years imprisonment; extradition
being requested; embezzling funds from shareholders of LCIAD; having organized similar
activities in Greece, Georgia, Canada and the USA; involvement in a Canadian pseudo-
religious cult involved in money laundering; that Bulgarian authorities seek to contact
competent Canadian official(s) at Interpol Ottawa.

148.The Applicant repeats and re-alleges each of the foregoing paragraphs as if fully set forth
herein.

149.On 13 February 1996 new accusations and charges were brought by NIS investigator S.
Georgiev after his having being notified by the MPPO of requests to the Government for
documentation, in the German language and compliance with Article 12 § 2 (a) ECE, the
new criminal suppositions and purported facts as represented to the FDRG read:
…[sic]…
1. For the period of time April 01, 1993 till August 01, 1995 in the city
of Sofia and in other cities of the Republic of Bulgaria, and with
the conditions of constantly perpetrated crime, for the purpose of
receiving material benefit for himself, has initiated and supported a
fallacy with a number of 9,065 Bulgarian citizens by way od
issuing them with "Redeemable Depositary Receipts" and
"American Depositary Receipts" and has thereby caused to those a
material damage of especially great value in the sum of USD
7,898,815.00, representing an especially aggravated case.

The committed offence is found as per Article 211 ref. Article 209
para 1 and Article 26 para 1 of the Penal Code [Nakazatelen
Kodeks - Criminal Code (CC)] of the Republic of Bulgaria.

2. For the period of time June 17, 1993 till August 01, 1995, in the
city of Sofia, Republic of Bulgaria, and with the conditions of
constantly perpetrated crime, has unlawfully acquired the
corporate movable property, as placed in his care and governing
under his official capacity of executive director of the "LifeChoice
International Ltd",[LCIAD] Sofia - sums of money in Bulgarian
levas and in foreign currency in the amount of USD 4,721,185.00,
being wire transferred from the Republic of Bulgaria to the USA
and Jamaica through the submitting to a Bulgarian bank of 6
fictitious pro forma invoices. This embezzlement is of an especially
great value and is representing especially aggravated case.

The committed offence is found as per Article 206 para 4 ref. Para
1 and Article 26 para 1 of the Penal Code of the Republic of
Bulgaria.

3. On November 11, 1994, in the city of Sofia, Republic of Bulgaria,

in order to evade from the payment of due taxes, has held back the
truth in a written declaration - due taxation form number 12507 for
the financial 1993 year, submitted upon the "Tax department" of

27
 the district of "Sredetz", city of Sofia, this form being duly sought
after as per Article 13 of the Value Added Tax Act [ wrong
translation - "Income Tax Act" - "Zakon za Danak varhu obstia
dohod"], as certification before the authorities of the circumstances
related to his commercial activities within the company "LifeChoice
International Ltd" [LCIAD], Sofia.

The committed offence is found as per Article 313 para 2 ref. para
1 of the Penal Code of the Republic of Bulgaria.

And with considering the degree of the danger to Society of the

offences committed, the personality of the perpetrator, the possibility
for his non-attendance and other facts: the great degree of the danger
to society - damaged in the sum of USD 7,989,815.00 were thousands
of Bulgarian citizens - investors in the LifeChoice International LTD
[LCIAD], Sofia and in accordance with the prescriptions of the Direction
Letter of the District Attorney of Sofia [SCPO] and of the Attorney
General's Office [MPPO] of the Republic of Bulgaria, relating to the
prosecution of the "Pyramid fraud schemes" and in compliance with
Article 146-148, 152, 207 209, 212 of the Penal Procedure Code
[Criminal Procedure Code - CPC] of the Republic of Bulgaria

HAVE RULED:
1. To bring a charge against MIHAIL (MICHAEL) KAPOUSTIN as
accused for the criminal offences stated herewith as per Article
211 ref. Article 209 para 1 and Article 26 para 1; Article 206 para
4 ref. para 1 and Article 26 para 1; Article 313 para 2 ref. para 1
of the Penal Code of the Republic of Bulgaria.

2. The attendance ensuring measure of the said person to be taken

being "Detention Under Custody" as provided in Article 217a and
Article 268 para 3 and 4 of the Penal Procedure Code of the
Republic of Bulgaria.

The measure thereto "Detention Under Custody" to be counted after the

27th day of November 1995, this day being sanctioned and taken by
the District Attorney of Sofia [SCPO].
… [sic]…

150.Attorney Stoycheva again dutifully as required by NIS investigator Goergiev did endorse
the new criminal accusations brought against the Applicant and charges qualified under
Criminal Code Article 206 § (4) 1, Article 211 and Article 313 § (2) 1. Subsequently
thereafter new Orders of Detention [arrest] were authorised by supervising SCPO
Prosecutor M. Stoyanov.

151. On 16 February 1996 Main Public Prosecutor Ivan Tatarchev [Attorney General], MPPO
Republic of Bulgaria submitted a request [petition] to the Ministry of Justice, FDRG, the
Minister, to extradite the Applicant to the Republic of Bulgaria. MPP Tatarchev repeated
and re-alleged the contents of the 28 November 1995 and 12 February 1996 Orders of
Detention [arrest] going on to state, inter alia, that remand in arrest of the Applicant was
qualified since 27 November 1995, by "default" under Criminal Procedure Code, Article
152 § (1); that the investment contracts [Depositary Receipts] publicly offered and floated
in Bulgaria are not securities; LCIAD, a company managed by the Applicant, conducted
illegal banking activity; 9,000 individuals concluded investment contracts [depositary

28
 receipts] equal to 12,620,000 USD; there existed as of the 12 February 1996 Order of
Detention [arrest], in possession of the Government, 3,400 individual criminal complaints
against the Applicant; private complaints allege breach of contract, fraudulent
representations and the forcing of 3,400 individuals to act against their will; the unlawful
acquisition of clinic drugs from outside Bulgaria; failure to purchase the medicines from
agencies or instrumentalities of the Government; failure to import the purchase clinical
drugs; the alleged misappropriation of 7,898,815 USD on account thereof; avoided
personal income tax due the Government and provided a false personal tax declaration.

152.The Applicant repeats and re-alleges each of the foregoing paragraphs as if fully set forth
herein.

153.On 2 September 1996 the Applicant, while still hospitalized and under doctors' care by
prison authorities of the FDRG, was forcefully removed from intravenous feeding and
hydration by police officers of the FDRG and transported, unconscious by police vehicle,
to a waiting Balkan Airlines flight where after being physically carried aboard the aircraft
by Frankfurt airport hospital staff the flight departed for the Republic of Bulgaria.

154.Extradition of the Applicant by the FDRG was predicated upon Government complying
with Article 14 § 1, ECE undertaking prosecution and trial of the Applicant only upon
those criminal elements and facts embodied in the 28 November 1995 and 12 February
1996 Orders of Detention [arrest] of police investigator (sledovatel) S. Georgiev as setout
above.

155.On 26 May 1997 investigator S. Georgiev was replaced by investigator Roumen Kirov.

156.On 1 July 1998 NIS police investigator R Kirov after a three (3) years 12 days completed
the investigative activities of the NIS, two (2) years 29 days after remand in arrest of the
Applicant. NIS investigative conclusions read: …

157.On 8 September 1998 the Applicant was remanded in arrest, solitary confinement, to the
Sofia Central Prison at 21, Stoletov St., Sofia, Bulgaria where he remains presently
imprisoned waiting trial.

158.On 5 October 1998 the MPPO by committee reviewed the 1 July final accusatory
conclusion of NIS investigator R. Kirov. Present were Main Public Prosecutor, Ivan
Tatarchev, MPPO Prosecutor M. Boyadjiev, SCPO Prosecutor G. Popov, MPPO Prosecutor
M. Doichev, SCPO Prosecutor V. Stanev and case supervising prosecutors M. Stoyanov
and Pl. Tzankov, MPPO. The purpose of the meeting was to resolve confusion as to
accusation and charges should be brought against the Applicant. The resolution taken
refuted the NIS investigative result of 4 years and demanded Prosecutor N. Nestorov, Chief
prosecutor Sofia, SCPO bring new charges and in part reads: …

The case has been brought to an end by NIS and had been sent to
SCPO with the opinion to bring the accused KAPOUSTIN to the court for
offence as per art. 211, ref. art. 210 of Criminal Code (CC).

This qualification of the act has been co-ordinated with the supervising
prosecutor from MPO Mr. Pl. Tzankov.

The supervising prosecutor from SCPO M. Stoyanov shares completely

the said qualification too.

29
 The following resolution was taken at that deliberation: SCPO will
submit an Indictment against the accused KAPOUSTIN with a
qualification of the deed by virtue of art. 203, CC for a pert of the
amount incriminated as per art. 211, CC and namely for the amount of
USD 5,000,000 (equivalent in BGL).

Annotation at the top not readable:

Result! (not readable)
After the deliberation and the opinions expressed by the
prosecutors at …… prosecutor’s office by virtue of ……6, par. 3
of ЗСВ (the Law on Judicial Authority) I order to submit the
Indictment as per art. 203, ref. art. 211 of CC.
City Prosecutor (signature)
Oct. 14, 1997

To send back to prosecutor Stoyanov

Oct. 14, 1998 signature

159. Supervising case Prosecutor M. Stoyanov, clearly in conflict with resolution conclusions to
introduce a "new" charge of embezzlement [Article 203, Criminal Code] provided in his
correspondence to Chief Prosecutor Nestorov, SCPO an opinion as prosecutor under the
case. It reads:

"The qualification as per art. 203, ref. art. 211 of CC is a legal absurd
since the subject of offence is one and the same. After having
expressed once again my opinion upon the qualification of the act –
offence as per art. 211, CC taking in consideration the obligatory
orders of the higher prosecutors, I ask for your written order in the
above mentioned sense."

160.On 20 October 1998 SCPO M. Stoyanov issued a Ruling (Postanovlenie) whereby upon the
direct order of MPPO, he was returning the Applicant's case for an additional 20 days
investigative action to bring a new accusation [embezzlement] and a charge under
Criminal Code Article 203, the Ruling in part reads:

I ASCERTAINED THE FOLLOWING:

The preliminary proceedings have been constituted and conducted

against MICHAEL KAPOUSTIN for an offence according to art. 203,
211, 206 of CC.

The case has been brought to an end and sent to SCPO with an
opinion to bring the accused Kapoustin before the court for offence as
per art. 211, CC.

After considering the qualification of the deed in the Main Prosecutor’s

office of the Republic of Bulgaria a new indictment should be brought
with disposition and numbers as follows:

For the reason that during the period of time between April 1, 1994
until July 31, 1995 in Sofia and throughout the country acting in his
official capacity as a manager, an executive member of the Board of

30
 Directors, a person directing (managing) the financial assets of LCI AD
and owner of 75% of the registered capital of LCI AD, he embezzled
other people’s money – in foreign currency and BGL belonging to 4
731 persons amounting to a total sum of 509 302 760 BGL that was
handed to him having the said capacity and entrusted to him to keep
and administer it. These monies represent an especially large amount
and the case is extremely grave. From the said amount he has made
transfers made abroad amounting to USD 4 242 405.60 and DM 580
000 for the total equivalent amount of 259 963 817.20 BGL as it
follows:

I. …[sic]

II. He has embezzled as well the amount of 249 338 942.80 BGL (the
balance between 509 302 760 and 259 963 817.20 BGL) spending
the latter for advertising, sponsorship, office equipment, cars,
dividends, etc. and to facilitate the embezzlement has effected another
offence, for which the law makes no provisions for a more heavy
penalty – a penalty as per art. 211 provision 1; ref. art. 210, par. 1,
sec. 3, provision 1; ref. art. 209, par. 1; ref. art. 26, par. 1 of the
Criminal Code (CC) - acting in his official capacity as a manager and
an executive member of the Board of Directors of LCI AD, directing
(managing) the financial assets of LCI AD, aiming at obtaining for
himself and for LCI AD property benefits under the circumstances of a
continuous felonious activity, he aroused and sustained delusion in
4,731 persons thus inflicting a property damage to them amounting to
509 302 760 BGL (in this sum included USD 2 481 228.87 equal to …
…………..; DM 345 706.13 equal to …………….). Kapoustin embezzled
the said amount subsequently. To collect the latter he organized,
ordered and took part in a public raising of depository funds in local
and foreign currency through issued and distributed against payment
ADR and ODR. The fraud is of a particularly large scale and the case
is extremely grave – the damaged persons and the damages incurred
equal to the amount of the deposits are as follows:…………………- a
list of the 4 731 persons to follow – as it has been done with the ruling
for final prosecution.

- an offence as per art. 203, par.1; ref. art. 202, par. 1, sea. 1; ref. art.
201; ref. art. 26, par. 1; ref. art. 211, prov. 1; ref. art. 210, par. 1, sec.
3 prov. 1; ref. art. 209, par.1; ref. art. 26, par. 1 of CC.
After charging the accused Kapoustin to be questioned in his capacity
of defendant, the matter (evidence) under the case to be submitted to
him.

In consideration with the aforesaid and by virtue of art. 180, 236 of

the Criminal Procedure Code,

I RULED:

I SEND BACK the preliminary proceedings for additional investigation

to observe the instructions in the substantive part.
The case to be sent back for the attention of investigator Kirov.
Term 20 days.

31
161.On 27 October 1998 NIS police investigator R. Kirov brought the new charges as ordered.
In the relevant part it reads:

"Today Oct. 27, 1998 in Sofia I the undersigned Roumen Kirov

investigator at the National Investigation Service (NIS) observe the
investigation actions ordered to me by virtue of a Ruling dated Oct. 20,
1998 of the Sofia City Prosecutor’s Office to bring a charge against:"

Police investigator Kirov thereafter repeats and re-alleges SCPO Prosecutor M.

Stoyanov's Ruling.

162.On 29 October 1998 police investigator R. Kirov drafted and submitted an "Additional
Accusatory Conclusion" (Dopalnitelno obvinitelno zaklyuchenie) refuting his 27 October
Ruling, the complete text reads:

Today, Oct. 29, 1998 in Sofia I Roumen Kirov being an investigator at

the NIS assessed that the prerequisites as per art. 219 of the Criminal
Procedure Code (CPC) exist therefore I draft this accusatory conclusion
against:

MICHAEL KAPOUSTIN born on Nov. 6, 1952,

citizen of Canada for an offence as per art. 211,
hypothesis 1; ref. Article 210, par. 1, sec. 3,
hypothesis 1; ref. Article 209, par. 1; ref. 26, par. 1
(rescinded SG 62/1997); ref. Article. 2, par. 2 of the
CC.

During the investigation I found out the following:

The inv. case has been sent to the Sofia City Prosecutor’s Office
(SCPO) with the opinion to bring the accused Kapoustin to trial by
virtue of the cited above texts substantiated in the Accusatory
Conclusion dated July 1, 1998, in which the factual circumstances
have been set out and the corresponding legal conclusions have been
made.

By a ruling of the SCPO from Oct. 20, 1998 the case has been sent
back for additional investigation with instructions for a new indictment
as per art. 203, par. 1; ref. art. 202, par.1, sec. 1; ref. art. 201; ref. art.
26, par. 1; ref. art. 211, prov. 1; ref. art. 210, par. 1, sec. 3, prov. 1;
ref. art. 209, par. 1; ref. art. 26, par. 1 of CPC.

These instructions were implemented on Oct. 27, 1998.

I totally support the legal conclusions drawn by me in the said

Accusatory Conclusion dated July 1, 1998.

I share the opinion of Mr. Mario Stoyanov – a prosecutor with the Sofia
City Prosecutor’s Office stated in his report …..(not readable)…. By the
City Prosecutor Mr. N. Nestorov.

To support the aforesaid I present the following:

32
The offences as per art. 201 –203 and 209 – 211 of CC are to be
found in Chapter five and like all the rest of provisions in it represent a
form of trespass upon property differing in the way of its expropriating
and in the official capacity of the person (thus the act as per art. 201 –
203 might be done only by an official in the meaning of art. 93 of CC –
funds have been handed to this official on legal grounds to keep and
manage them).

It has been found out under this case that the subject of the offence
are funds belonging to the deceived citizens. With each amount of
money incoming to the patrimony of LCI AD the effecting act of the
offence as per art. 211 of CC has been concluded. Both LCI and the
defendant Kapoustin being the main shareholder and the person to
dispose of the assets of LCI have been favoured. It is of no importance
for the character of the deed what subsequent actions have been
effected with the funds fraudulently acquired and whether or how
they have been spent.

The legal structure ordered by SCPO (art. 203, ref. art. 211) provides
that the funds fraudulently acquired once being expropriated later they
have been embezzled by the same person, i.e. a double appropriation
has been effected of an identical (coinciding) subject of offence. Fraud
in itself is a form of appropriation of other people’s property effected
by the method of misrepresentation to the deceived person(s). The
amounts acquired by the person through fraud have been already
appropriated, i.e. an illegal transformation of other people’s property
has been made and the offensive result aimed at has been obtained.
The executive act as per art. 201 – 203 of CC may begin only after the
property subject of an offence comes to the disposition of the person on
legal grounds but not by fraud. In this sense the structure as per art.
203 ref. art. 211 of CC would mean legalization of the fraud.

As far as fraud is concerned as per art. 209 – 211 the executive act
(deed) ends with the receipt of the funds to the person or someone else
and the acts of disposition are important only and as far as they
objectify the malice. The subsequent dispositions are not a part of the
corpus delicti. The bank transfers in favour of IPS (International
Pharmaceutical Suppliers) found by the investigation illustrate the
malice for fraud – they are acts that objectify it. In themselves the
otherwise “legal” expenditures of LCI such as salaries of the
personnel, advertising, rents, etc. that cannot be considered as
appropriation in the meaning of art. 201-203, also objectify the fraud
because they are in favour of LCI and of absolute damage to the
deceived. This has been charged to the defendant Kapoustin as an
offence as per art. 211 ref. art. 210 of CC.

The offences facilitating the appropriation may begin only after the
property has been handed on legal grounds but not by theft, robbery
or fraud, which represent by themselves forms of appropriation.

The factual circumstances show that the collection of deposits subject

of the offence has been effected regularly publicly and throughout a
year. At the same time regularly and throughout a year the acts of
disposition including the bank transfers in favour of IPS have been

33
 effected as well. The qualification as per art. 203 of CC, if not
connected with art. 211 of CC, would mean that the malice of
Kapoustin for appropriation has appeared after the receipt of the funds
of the particular deceived person(s) to the patrimony of LCI, i.e. that
when promoting and distributing ODR and ADR the defendant has
acted as a good faith party to the transactions and that only the acts of
disposition of the funds acquired are illegal. It would mean that the
malice is not connected to the collecting of the funds subject of the
offence but it aroused only at and on the occasion of the system of acts
of disposition separately of the acts of collecting. This complies neither
with the factual circumstances established, nor with the logic of the
offence.

Taking into consideration the aforesaid the legal structure art. 203, ref.
art. 211 of CC is internally inconsistent, impossible and wrong.

Further to the aforesaid and by virtue of art. 219 and 221 of the
Criminal Procedure Code

I RULED:

Investigation case 195 from 1995 as per the schedule of NIS to be sent
with opinion to bring the accused Michael Kapoustin to trial by virtue of
art. 211, hypothesis 1; ref. art. 210, par.1, sec.3, hypothesis 1; ref. art.
209, par. 1; ref. art. 26, par. 1 (rescinded SG 62/1997); ref. art. 2, par.
2 of CC.

The rest of the charges brought up should be abandoned by virtue of

art. 21, par. 1 of CPC.

163.On 30 November 1998 Prosecutor Mario Stoyanov issued a Ruling for partial ending of
the preliminary proceedings. It reads:

I, the undersigned MARIO STOYANOV - a prosecutor in the Sofia City

Prosecutor's Office, after having examined the materials on
investigation case No 195/95 of the register of the National
Investigation Service, ref. No. 3097/1995 of the register of the Sofia
City Prosecutor's Office,

I ESTABLISHET THAT:

The pre-trial investigation is brought to an end and sent to the Sofia

City Prosecutor's Office with opinion for bringing the accused MICHAEL
KAPOUSTIN (MIHAIL KAPOUSTIN) to trial for crime under Article 203
para 1 in conjunction with Article 202 para 1 item 1 in conjunction with
Article 26 para 1, in conjunction with Article 211 para 1, in conjunction
with Article 210 para 1 item 3 in conjunction with Article 26 para 1 of
the Penal Code [Criminal Code - nakazatelen kodeks].

In the course of the investigation, charges with crimes under Article

206 para 4 in conjunction with para 1, in comjunction with Article 26
para 1 and under Article 313 para 2 in conjunction with oara 1 of the

34
 Penal Code were also brought against the accused KAPOUSTIN -
which charges, bearing in mind the evidence collected on the case,
have to be closed.

With respect to the above and on the grounds of Article 180, 237 of the
Penal Procedure Code [Criminal Procedure Code, Code of Criminal
Procedure - Nakazatelno-protsesualen Kodeks - NPK],

I HEREBY ENACT AS FOLLOWS:

I partially close the pre-trial proceedings against MICHAEL

KAPOUSTIN (MIHAIL KAPOUSTIN) for a crime under Article 206 para 4
in conjunction with para 1, in conjunction with Article 26 para 1, as
well as for crime under Article 313 para 2 in conjunction with para 1 of
the Penal Code.

I hereby submit an Act of Indictment against MICHAEL KAPOUSTIN for

a crime under Article 203 para 1 in conjunction with Article 202 para
11 item 1, in conjunction with Article 201 in conjunction with Article 26
para 1, in conjunction with Article 211 hypothesis 1, in conjunction
with Article 210 para 1 item 3 hypothesis 1, in conjunction with Article
209 para 1, in conjunction with Article 26 para 1 of the Penal Code.

A copy of the ruling is to be sent to the accused KAPOUSTIN through

the Head of the Sofia Central Prison.

164.On 4 December 1998, three (3) years after Applicant's remand in arrest, Sofia City
Prosecutor N. Nestorov submitted to the SCC a final 23 page [English version] "Act of
Indictment" (Obvinitelen akt) formally charging the Applicant and essentially repeating the
accusation and charges as setout in the 5 October MPPO ordered Rulings of 20 October
and 27 October 1998. The letter reads:

According to Article 240, PPC I lodge an Act of Indictment together with

correspondence No 3097/95 as per the register of the SCPO and
investigative case No 195/95 as per the register of NIS against the
accused MIHAIL KAPOUSTIN for a crime under Article 203 para 1 in
conjunction with Article 202 para 2, item 1, in conjunction with Article
201, conj. Article 26 para 1, conj. Article 211 hypothesis 1, conj. Article
210 para 1, item 3 hypothesis 1, conj. Article 209 para 1, conj. Article
26 para 1, PC for duly ruling.

ENCLOSURE: inv. Case No 195/95 - 352 volumes

2 copies Act of Indictment; Ruling for partial ending
8 binders exhibits (prilojenia)

Judicial investigative proceedings by the Sofia City Court, 11th staff, Criminal College under
c.c.c.c. 1403/98 were instituted and set to begin 16 April 1999.

165. On 14 January 2000, the 9th month of judicial investigative proceedings and fourth year of
Applicant's remand in arrest, the new accusation against him as brought on 27 October
1998 was for a third instance again altered upon MPPO order. Case Prosecutor M.
Stoyanov, in open session, introduced new charges by altering the factual part of the

35
 indictment as brought before the investigating court on 16 April 1999, the new charges
read:

"Concerning the main charge as per Article 203, Criminal Code (CC)
the subject of crime, with the accusation under Article 203, CC as it is
set down in the circumstantial part, it was accepted that the funds
misappropriated are property of 4,731 persons. According to the
evidence collected an accusation should be brought up that this
amount is property of the company. The form of property in the
circumstantial part as well as in the dispositive of the accusation is an
essential change in the circumstantial part, therefore by virtue of
Article 285 § 1, Criminal Procedure Code (CPC) I bring up a new
accusation to the Defendant for a crime under Article 203 - the same
version of the accusatory part except for 'property of 4,731 persons', to
consider it 'property of LCIAD'. Concerning the figures - this part of the
accusation is not changed. In the facilitating accusation, 'with the
purpose to obtain for himself and LCI [LCIAD] property benefit
(proceeds) I bring a new charge under Article 211, CC, as it is in the
Act (of Indictment) to delete in the dispositive of the Act of Indictment
only 'for himself'. Under the new accusation brought up in this way the
preliminary investigation has been conducted, I consider the conditions
under Article 285, CPC are present."

166.On 14 January 2000 the Applicant's defence attorney A. Lukanov demanded the
proceedings to be stopped and the case sent back to pre-judicial phase and that the
extremely essential alteration of accusation is in violation of the ECE. The judicial record
of that date reads:

ATTORNEY LUKANOV: I consider that the alteration of accusation is

in violation of the ECE, since Prosecution takes the liberty to enter
exceptionally essential alteration of the accusation. [sic]

PROSECUTOR: In connection the request for ceasing of the judicial

investigation - the court will rule with passing of the verdict. The
veracity of the alteration made cannot be accepted in advance as the
Defence wants. When the judicial investigation is at its end the Court
will assess whether the evidence is adequate or not and this will be
reflected in the judicial act. Th European Court of Human Rights is to
assess evidence and not the investigation.

The request for extradition has not been breached - the accusation is
not altered in its figures. Only the form of property has been altered in
the dispositive part. … [sic].

THE COURT AFTER DELIBERATION and by virtue of Article 285 §

(1), CPC

DETERMINED: IT ALLOWS alteration of the accusation as formulated

in the Act of Indictment into the newly brought up by the representative
of SCPO.

Concerning the request for ceasing of the proceedings because of

unconformity of the newly accepted accusation to the accusations set
out in the request of MPPO for extradition THE COURT FINDS that

36
 this is an issue of essence and there is no procedural possibility and
procedural grounds at present during the judicial investigation to rule
upon it.

167. On 19 January 2000 the Applicant lodged with Chief Prosecutor, SCPO, Nestor Nestorov a
protest and demand asking for compliance with Article 6 § 3 abstract (a) of the
Convention; Article 411 § (1) subpara 1 of the CPC; Article 439 § (1) CPC and Article 14 §
3 of the ECE. He demanded SCPO setout and identify what facts, circumstances and
evidence constitute the new accusation and how they deviate from the original
accusations set out on 27 November 1995 and 12 February 1996; what materials
constitute the new corpus delicti of the accusation; SCPO has not identified the injured
party or the nature of injury under the new accusation; is it a crime, under the laws of
FDRG, for the sole principal shareholder of a private company to dispose of or to invest
the assets of the company in accordance with the plans and wishes of its shareholders
and investment objectives of the company; no complaint from any shareholder, director or
officer of the company is in evidence; the state is not a party competent to determine if an
investment or expense concluded by the Applicant is a misappropriation of corporate
funds.

168.On 26 January 2000 SCPO Nestor Nestorov replied to Applicant and his letter reads:

"By virtue of Article 285 para 1 PPC it is prosecutor’s right to bring up

a new charge when during the judicial inquiry grounds for substantial
alteration of the circumstantial part of the accusation are established.

In compliance with this legal opportunity in a judicial hearing a new

charge has been brought up and submitted to the Defendant
KAPOUSTIN, which differs from the primarily brought one neither in
the part containing the figures of the “basic” charge as per Article 203
… in conj. Article 211… PC, nor in the facilitating crime.

The new substantial alteration is in the form of property of the money

misappropriated – i.e. he misappropriated entrusted to him for
management money belonging to 4,731 persons (my note as it is in the
primary accusation), with the new accusation – belonging to the
company.

The defense counsel of the Defendant KAPOUSTIN is the one to

explain to him this act of SCPO and if the defense is not in a position to
do it, the court at the request of the Defendant is to make clear the new
accusation.

It is not incumbent upon SCPO to submit to the Defense a motivated

written decision in which the old accusation is revoked and a new one
is brought up.

The new accusation was brought up in a judicial sitting and this

circumstance was reflected in the record of the judicial sitting.

SCPO does not find contradiction between the accusation brought up

and the approval for extradition of the Defendant. In the request for
extradition for the offence under Article 203 a charge for
misappropriation of property was brought up and at present it has not
been altered and constitutes part of the request itself.

37
 These actions are effected by prosecution during the judicial stage of
the penal proceedings – i.e. under the control of Court."

169.On 2 February 2000 the Applicant filed an Objection and Appeal with the Sofia Appeal
Court (SAC) and his appeal reads in part:

In accordance with the Defendant’s right embodied in Article 345 para

(1) PPC and as qualified under Article 344 para (3) the Defendant
objects to and seeks the modification of a ruling subject to verification
by the procedural order setout in Article 348 PPC. The Defendant
seeks appellate review of Judge Mitkova’s Ruling that Article 439 para
(1) PPC and Article 14 para (3) European Convention on Extradition are
not procedurally incumbent upon her or possible.

On January 14, 2000 Her Honor Mitkova brought a new accusation

against the Defendant whose facts and circumstances were qualified
under Article 203 PC. This was grounded upon evidence collected by
her court during the judicial inquiry which disclosed evidence,
according to the Court, of a new offence other than that for which the
Defendant was extradited. The extraditable offences in the factual and
circumstantial parts were setout in the SCPO warrants of arrest issued
on Nov. 27,1995 and Feb. 12, 1996. And as subsequently submitted
on Feb. 16. 1996 by the MPPO to the Federal democratic Republic of
Germany as required under Article 436 para (1) item 1 PPC in
conjunction Article 12 of the European Convention on Extradition.

The admission of a new accusation, despite its similar qualifying

Article, is out of order and constitutes a violation of substantive law.
Chapter 22, Section I, in particular Article 439 para (1) PPC makes
officially implicit and incumbent upon the Court to proceed only upon
the crime for which extradition was granted, not the qualifying penal
article. Her Honor’s ruling violated the procedure setout under this
chapter and section of the code. Her Honor Mitkova’s Ruling to bring a
new charge breached not only the substantive law embodied in the
PPC but Bulgaria’s and therefore its judiciaries official obligation to the
convention which protects this Defendant’s rights according to Article
93 para 13 PC. Judge Mitkova further and specifically violated the
principle embodied in Article 14 para (3) in conjunction with Article 12
para 1 and 2 abstract (b) in conjunction with Article 2 para 1 and 2 of
the ECE. She must have, but did not, qualify if the new accusation’s
constituent elements qualified as an extraditable offence according the
laws of the FDRG.

The Defendant seeks to subject Judge Mitkova’s Ruling to appellate

verification on the grounds that she is officially bound to observe
Chapter Twenty Two, Section I PPC. Due to the nature of the case and
the Defendant’s status under Article 93 para 13 PC it is requested the
appellate judges determine if it is or is not officially incumbent upon
the SCC to be guided by the procedures in the ECE as superseding
law according to the constitutional principle of Article 5 para (4) of the
Constitution of RB.

38
 Her Honor Mitkova was cited the relevant law by the Defendant and
defense. Her Honor abnegated her responsibility by citing that there
existed no procedure possibility to her to consider defense pleas that
the entry of a new accusation by Her violated substantive law and the
Defendant’s rights under Article 93 (13) PC, as well as Her official
responsibility under constitutional law.

This decision to not rule on the defense motion to reject the new
accusation is without merit and must be overturned. Article 439 (1)
PPC in conjunction with Article 21 para (1) PPC, as amended, together
with Article 14 (3) ECE provide Her Honor sufficient procedure
possibilities to dismiss the new charge and allow the proceedings to
continue under the remaining charge. Article 247 PPC is adequately
rich in possibilities to end proceedings on charges not qualified under
Article 439 para (1) PPC. Or to, in the alternative, return the indictment
to the SCPO for compliance with Article 439 para (1) PPC and 14 para
(3) ECE and institute a new trial on the new charges subsequent to the
issuance of an indictment modified to reflect the new accusation and
facts.

The Defendant demands the appellate court review and resolve this
clear breach of procedure and law by modifying or revoking Judge
Mitkova’s ruling and force her to comply with the official responsibility
incumbent upon a judge of the SCC. And to comply with the procedure
possibilities set down in law. In the alternative the Defendant
demands the appellate court motivate clearly why the aforesaid
articles of law and procedure are not incumbent upon Her Court.

170.On 14 February 2000 Applicant appealed the decision of Prosecutor Nestor Nestorov to
the Sofia Appellative Prosecutor's Office and Supreme Cassation Prosecutor's Office
(SCaPO) Republic of Bulgaria and his appeal reads in part:

The Appellant protests SCPO refusal to provide a legitimate and legally

motivated reply in a form and style which realizes the legislated
function of the SCPO. It is appealed that the SAP compel the SCPO to
fulfil its function under law and to motivate according to law its
decision.

This function is clearly setout in Article 43 para (2) principle 3 PPC and
is officially incumbent according to the SCPO constitutional mandate
under Chapter Six RBC. As is SCPO responsibility to comply with
international law as officially incumbent under Chapter One, Article 5
para (4) of the RBC. The SCPO has neither complied with the law or
procedure setout therein.

It is further protested that the SCPO by not conforming to its mandated

function has failed to qualify the new accusation under the procedural
order of Chapter Twelve, Section V.

The new criminal supposition and its qualifying penal hypothesis must
be grounded and motivated in this penal proceeding according to the
superceding law and international agreements prevailing over national

39
law. It is protested that the SCPO and not the Sofia City Court must
establish and sustain the new accusation as brought.

The SCPO has refused to motivate the new accusation according to the
applicable laws or upon the evidence, facts and circumstances under
the case.

…[sic] … In fact a new charge is brought to court without any

responsibility under law to establish the grounds or cause as to why it
is brought. Thus the SCPO has shifted the burden of proof to the
presiding judge.

… [sic] … Procedure under the case demands the MPPO, through the
offices of the Ministry of Justice, qualify the new accusation to the
extraditing state, the FDRG, prior to the entering of a new accusation.
And then only after its consent mutatis mutandis. It is protested the
SCPO has exceeded in bringing a new accusation. It is officially
incumbent upon the SCPO to qualify the substantial, factual and
circumstantial alteration cited by SCPO Nestorov as being an
extraditable offense. This must be brought to the jurisdictionally
competent authorities prior to the new accusation being laid.

… [sic] …

This SCPO conclusion is protested and must be examined according to

the procedural principles embodied in Articles 234 and 235 PPC and
Article 14 para (3) and 12 ECE. The new substantial alteration is
significant in that the patrimony of the amounts claimed to be
misappropriated and the injured party has altered. It is factually and
objectively a new crime, which is suggested, notwithstanding the same
penal qualification.

The position now expressed by SCPO Nestorov was pleaded by the

defense on April 16th and April 21st, 1999 and is set down upon the
record. In this, finally the accused and SCPO are in agreement in their
dialectic upon the first defense argument.

It is protested that the SCPO has not qualified, upon the evidence, the
hypothesis embodied in Article 201 PC. The SCPO has not provided
objective substance to its impossible presumption that one can be an
“official” under the hypothesis embodied in Article 93 para 1 PC to
one’s self and then subsequently embezzle from one’s self property,
which is his patrimony according to law.

This protest is grounded by evidence under the case. The Act of

Indictment clearly establishes that; the accused is the owner of the
company, in majority; that there is no complaint from the minority
shareholder of the company; that there is no signal of misappropriation
to the Prosecution from directors of the company. The judicial

40
 investigation has confirmed the aforestated and has further
established that the company is solvent; has assets, which exceed
liabilities; in 4 years there has been filed no complaint of
embezzlement by the company.

The SCPO has not grounded how the new accusation would, upon the
foregoing constitute an extraditable offence under laws of the FDRG.
Clearly the new accusation is suspect in qualifying under Bulgarian
law.

SCPO ambivalence upon the accusation is apparent. This accusation is

clearly impossible and absurd under the facts. The hypothesis under
Article 201 PC is clearly unsatisfied under the case. But in maintaining
the accusation under Article 201 PC, despite its construction, permits
the SCPO to qualify the on going detention of the Appellant and justify
the proceedings continuance under its jurisdiction. In so defeating the
Appellant’s right to habeas corpus and defense.

For good reason the SCPO avoids elucidation upon the criminal
supposition of embezzlement of assets, which are the property of a
privately held company owned and controlled by the accused.

The SCPO supposition may well establish new legal ground. As

constructed the prosecution has proposed that the injured party and
the perpetrator of the injury are in fact one and the same body. That
furthermore it is possible to prosecute in the absence of an injury or
crime, since the company has made no claim against the accused, nor
have the accused’s actions manifested an injury to it. This SCPO
supposition has raised the hypothesis and principle of the ex officio
entry of the prosecution to new and unprecedented status.

In conclusion the SCPO has not provided the corpus delicti to support
its accusation. It has circumvented procedure and law incumbent upon
it by imposing upon Judge Mitkova its judicial function. Her Honor
accepts this role and an accusation with no qualifying body of
evidence.

…[sic]…

171. On 15 February SCC sent back to the Applicant 11 of his motions, protests and appeals
without any comment.

172.On 17 February 2000 at court's hearing Applicant asked the following:

"I'd like to draw your attention against proceeding with the judicial
investigation according to the new Article 285 of the CPC. This Article
provides for the proceedings to be held fully under the European law

41
on extradition, which this court has announced is not within its
competence. My opinion is supported by a letter of the SCPO Nestor
Nestorov date 26 January 2000 in which he states that it is not
necessary for the prosecutor to explain the accusations or to give
qualifications to them. The procedural law as embodied in the
Constitution makes it incumbent upon the court the accusations to be
included in the process and to be honoured and the court to take them
into consideration. Upon these grounds I pose a question to SCC or
SCPO to take into account the new thesis of the accusation with
contradictory facts and circumstances under the case, which contradict
the qualifying circumstances of the Article of CC. I demand the
Presiding Judge or the representative of the prosecution to comply the
new accusation with the applicable law - ECE. If it is not possible to do
this, the proceedings should not continue since important rules will not
be observed and the court is obliged to ensure observing them. The
Presiding Judge is allowed to continue with the proceeding within the
merits of facts and circumstances - their qualification under German
legislation - Article 263 and Article 266 of the German Criminal Code.
This decision of the Court is in violation of the procedural rules of the
Code and the rules for extradition under international laws, which the
Presiding Judge is obliged to observe. ECE prevails and the rules
under Chapter IV and V, Part III of the CPC should be observed. You
are officially obliged to qualify the new accusation according to the
German legislation. The facts and circumstances refer to Article 21
para 1 item 1, CPC. The new accusation is not qualified as an
extraditable offence neither under Bulgarian, nor under German law.
This rule is under Articles 12 and 2 of ECE. It is obvious when reading
the extradition request of MPPO of the Republic of Bulgaria that the
Defendant has not been extradited for embezzlement of money. The
company's capital consists of 75% my share and 25% minority share.
It is obvious that under the new accusation the issue is not about other
people's money but company's money, therefore of my money, which I
owe being principal shareholder. This is not a reason for extradition.
These facts and circumstances contradict the new thesis of the
accusation and obviously do not comply with and are not qualifyable
under the ECE, which you are obliged to observe according to Article
51 para (1) CPC. There is no evidence before this court which shows
the time, place and the beneficiary of all the funds presented as
accusation. No opinion has been expressed concerning this issue. I
would like to see evidence supporting the accusation - I mean the new
accusation, according to the German legislation. Her Honour knows
her decision from 23 September 1999, in which she assessed that this
judicial investigation has nothing to do with the money funds of the
company. This judicial investigation contradicts the new accusation -
your conclusions - a paradox, which should find an answer.

The fact that the accusation of embezzlement as presented in the

hypothesis of Article 201, CC, according to this logic the investors who
received dividends have to be included as co - accused. I'm sorry, I am
not qualified enough to understand this judicial investigation.

Attorney Lukanov: There is no request for agreement from Bulgaria

to Germany concerning the new accusation according to Article 12 of
ECE. There is no official protocol in this direction too.

42
 In view of the absence of approval on part of Germany according to the
law of specialty under the Convention, the defence makes an official
inquiry to Germany. Please accept a copy. The Defendant wishes and
has the absolute right to examine the evidence under the new
accusation, i.e. that he has embezzled funds of LCI [LCIAD]. I will cite
Decision No 107/98 of the Supreme Cassation Court (SCaC) wherein it
is stated that the accused has the right to learn what he is accused of,
upon what grounds and upon what evidence. This has to be observed
because vice versa the right of defense as per Article 330, CPC is
essentially violated. I consider the request of the Defendant for ceasing
of the case by virtue of Article 287 § (1) item 1, CPC is grounded in
view of major (essential) procedural violations.

The Court after deliberation:

Finds that the request for ceasing of the judicial proceeding is without
merit and therefore should be left unhonoured (rejected?).

The same request was made during the previous judicial sitting
concerning the unconformity of the newly accepted accusation with the
accusation set out in the MPPO request and the Court ruled that this is
an issue of the essence of the case, it is to be discussed at passing the
verdict and there is no legal possibility according to the rules of CPC to
rule upon this issue during the judicial proceedings.

As for the power of the court under Article 285 CPC - it is only to
accept the new accusation and to assess to what extent the conditions
under §§ 2, 3 and 4 of the same text are present."

173.On 27 March 2000 Prosecutor Bakalov, SCaPO ruled in answer to the Applicant's appeal :

…[sic]…
on 14 January 1998 SCPO has submitted to SCC - Criminal College an
Act of Indictment against you for an offence under Article 203, para 1,
in conj. With Article 202 para (1), item 1, in conj. With Article 201, in
conj. With Article 26 para (1), in conj. With Article 211, hypothesis 1, in
conj. With Article 210, para (1), item 3, hypothesis 1, in conj. Article
209, para (1), CC. A criminal of common character case has been
instituted No 1404/98 [wrong - No 1403]. Several judicial sittings
have been held (heard?) and the latter is in the phase of judicial
investigation. You have defence counsel secured.

There are no grounds to accept that Judge Mitkova has violated Article
286, CPC. Even if circumstances for another crime committed by
another person have been found out, who has not been subpoenaed
as a Defendant, the court sends the materials to the prosecutor and
continues hearing the case. In view of the explicit and clear text of law
you can not use this as a procedural ground to stop the proceedings.

There is no data for violation on part of Judge Mitkova under Article

287, CPC. The crime you have been taken legal action for is not
subject to be considered by a higher court or by court martial.

If you are still firmly convinced that during the judicial investigation the
judicial panel of SCC - Criminal College has allowed procedural

43
 violations, this will give you grounds to appeal the verdict taken
(passed) against you by initiating a procedure with the intermediate
court of appeal - respectively the Sofia Appeal Court (SAC).

Iv you have doubts that Judge Mitkova is biased or impartial directly

or indirectly concerning the end of the case, you have the right to
challenge her. The issue is to be resolved in camera with the
participation of all members of the panel according to the rule of Article
37 para (4), CPC.

There is no place for interference of the Main Public Prosecutor with a

pending penal proceeding."

III. Notice of ECHR Complaint to Republic of Bulgaria

156. On … the Applicant declared before Sofia City Court investigative and trial Judge
Mitkova3 of his intent to file before the European Court of Human Rights (hereinafter
“ECHR” an application complaining of Convention violations by agencies and
instrumentalities of the Government under Article 5, 6 and 7 of the Convention. The
relevant sections read:

“Article 5 – Right to liberty and security:

1. Everyone has the right to liberty and security of person. No one shall
be deprived of his liberty save in the following cases and in
accordance with a procedure prescribed by law:
a) …[sic];
b) the lawful arrest or detention of a person for non-compliance with the
lawful order of a court …[sic];
c) the lawful arrest or detention of a person effected for the purpose of
bringing him before the competent legal authority on reasonable
suspicion of having committed an offence or when it is reasonably
considered necessary to prevent his committing an offence or fleeing
after having done so;
d) …[sic];
e) …[sic];
f) the lawful arrest or detention of a person to prevent his effecting an
unauthorised entry into the country or of a person against whom action
is being taken with a view to deportation or extradition.

2. …[sic].
3. Everyone arrested or detained in accordance with the provisions of
paragraph 1.c of this article shall be brought promptly before a judge
or other officer authorised by law to exercise judicial power and shall
be entitled to trial within a reasonable time or to release pending trial.
Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings by which the lawfulness of his detention
shall be decided speedily by a court and his release ordered if the
detention is not lawful.
5. …[sic].

3
….

44
 Article 6 – Right to a fair trial

1. In the determination of his civil rights and obligations or of any

criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial
tribunal established by law. …[sic].
2. Everyone charged with a criminal offence shall be presumed innocent
until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum
rights:

a) to be informed promptly, in a language which he understands and in

detail, of the nature and cause of the accusation against him;
b) to have adequate time and facilities for the preparation of his defence;
c) to defend himself in person or through legal assistance of his own
choosing or, if he has not sufficient means to pay for legal assistance,
to be given it free when the interests of justice so require;
d) to examine or have examined witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the
same conditions as witnesses against him;
e) to have the free assistance of an interpreter if he cannot understand or
speak the language used in court.

Article 7 – No punishment without law

1. No one shall be held guilty of any criminal offence on account of any

act or omission which did not constitute a criminal offence under
national or international law at the time when it was committed. Nor
shall a heavier penalty be imposed than the one that was applicable at
the time the criminal offence was committed.
2. This article shall not prejudice the trial and punishment of any person
for any act or omission which, at the time when it was committed, was
criminal according to the general principles of law recognised by
civilised nations.

157. On ….2000 the Applicant, during a preliminary hearing before the Court observed and
noted on the record, inter alia, its obligation to “equality at arms” of the parties, that the
Government had evidence vital for his Application before the ECHR. It was incumbent
upon the Court to order the Government, its agencies or instrumentalities, to provide
the documents as petitioned by the defence and subpoenaed by the Court. The
Government in failing to do so made it incumbent upon the Court to seize and sequester
the demanded documents or alternatively obtain an explanation, in writing from the
Government and responsible agency as to the disappearance or reason for the
withholding from the Court and defence of material evidence and other documents as
requested by the defence upon the motive the documents demanded are those cited by
the Government, inter alia, the agencies of Interpol on 30 November 1995; the FDRG
on 16 February 1996; numerous internal reports and investigative information as
officially released to the press on 1 August 1996.

45
 A. Facilities, Means, Electronic4 Data

158. On … (see Exhibit No …) and subsequently again thereafter on … (see Exhibit No …), …
(see Exhibit No …), … (see Exhibit No …), the Applicant requested he be provided his
laptop computer, or access thereto, while in remand under arrest together with all
electronic evidence held by the prosecution. Which had up to the present moment been
denied the Applicant but were essential to defence of his rights and lawful interest,
Applicant motivating his request as a right to defence and equality at arms as embodied
in relevant national law and incumbent on the Court under Articles 10 and 14 of the
Criminal Code which read:

“10.
(1) All citizens who take part in penal proceedings are equal
before law. No privileges and limitations are allowed
based on nationality, origin, religion, sex,… , education,
social or material status.
(2) …[sic]

14.
(1) … [sic]
(2) … [sic]
(3) The Accused and the other citizens who take part in the
penal proceedings are granted all procedural means,
necessary to secure their rights and legal interests.
(4) (alt. SG 70/1999) the court and the pre-judicial procedure
bodies explain to the accused and to the other citizens,
taking part in the penal proceedings, their procedural
rights and secure them the possibility to exercise them.

159. On … the Applicant further elucidated to the Court that his right, as
petitioned [ [see before § …], is enshrined in Convention Article 6 which
reads:

Article 6 – Right to a fair trial1

1. …[sic]
2. …]sic]
3. Everyone charged with a criminal offence has the following minimum
rights:

a) …[sic];
b) to have adequate time and facilities for the preparation of his
defence;
c) to defend himself in person …[sic];
d) …[sic];
e) …[sic].

160. On … August the Applicant petitioned the Chairman of the Sofia City Court, Criminal
College, for a ruling upon the matter of the Applicant’s right to access the facilities of his
computer [and relevant data] as secured for him by the Embassy of Canada, Bucharest,
Romania, and as required for the preparation of his defence.

4
…

46
 IV. Before the Registrar

161. On 12 April 2000 the Registrar received a complaint prepared by Bulgarian attorney
and Applicant’s prior defence counsel Anatol Lukanov, wherein he did allege violations of
Convention Article 6 § 1, Article 5 §1 abstract (c) and Article 5 § 4 on the grounds that,
inter alia, the tribunal reviewing appeals of the Applicant was biased against him in
that its members had on several previous occasions issued final rulings; that national
law, Article 25 Criminal Procedure Code, prohibited a court member in reviewing a case
twice; that the in camera Rulings violated the principle of Equality At Arms; the
habeas corpus right of the Applicant was repeatedly violated in that no review was
made as to the cause, legal and procedural merit of his arrest; bias against the
nationality [Canadian] of the Applicant in that others [Bulgarian] similarly situated had
been released on remand; no effect domestic remedy existed neither to redress an
unreasonable period of remand in arrest [2 February 1996 – 12 April 2000] or an
unlawful arrest and detention [remand] in prison and refusal of the Government to
explain the nature of its accusation and provide access to all the evidence collected by it.
Enclosed where certified copies of the relevant judicial enactments complied of as
handed down by the respective court(s).

162. On 25 May 2000 the Applicant received from the Registrar, Legal Secretary J. Dimitrieva
– Najdanova, a deficiency letter, wherein upon the subject matter of the aforestated
claims [see before § …] the letter reads:

“Insofar as you complain that the criminal proceedings against you

are unfair I should draw your attention to Article 35 § 1 of the
Convention which provides that the Court may only deal with the
matter after all domestic remedies have been exhausted. From your
submissions it appears that the proceedings are still pending before
domestic courts.

You have not substantiated your last complaint that you are
unlawfully deprived your freedom. You have neither furnished further
detail nor sent any documents or judicial decisions in this respect.

If you intend pursuing an application these explanations, you are

informed that you should do so quickly, as a failure to act with due
diligence in the preliminary proceedings before the Court may affect
the date of introduction of the Application and thus the running of the
six months’ time limit laid down in Article 35 § 1 of the Convention”

163. On … Applicant complained to … that their conduct was such as to make it

impossible the judicial parity of defence or an application before the ECHR
if investigative and trial Judge Mitkova or the Government refused to
provide documents requested [see after § …§…] essential to the Applicant.

164. On 20 July 2000, in reply to the 25 May 2000 deficiency letter of the
Registrar, the Applicant by electronic mail and registered post as an
interim measure and signal of Government hindrance he wrote as follows:

“Dear Ms. Najdanova,

47
 I send my compliments to your Section and gratitude for the concerns
expressed in your 25 May 2000 letter. This response is much delayed
as a consequence of my physical and material circumstances of which
you are aware. However if no new obstacles are placed before me by
the High Contracting Party, Bulgaria, I should be able to shortly submit
in comprehensive detail additional supporting documentation and
argument.

As to the issues of merit raised in your letter I express again my

gratitude for your forbearance as I struggle to understand the practice
of the Court as well as the Rules. My response is as follows:

1. … [sic]
2. … [sic]
3. As to the unlawful deprivation of my liberty, prolonged and
unreasonable detention on remand, I refer to the case law embodied in
Lukanov v. Bulgaria judgement of 20 March 1997, Assenov and
others v. Bulgaria, judgement of 28 October 1998 and Nikolova v.
Bulgaria judgement of 25 March 1999. In each instance violation of
Article 5 §1 or alternatively §3 and §4 in conjunction with Article 13 of
the Convention have been unanimously upheld. I respectfully remind
you that I have been under remand since February 6, 1996 upto the
present and have no sentence yet passed by any court. I have
appealed for release on remand on 22 separate occasions before every
authority available to me. Respectfully I remind the Section that I have
been in arrest during the period that the above mentioned case law
was established and the circumstances of my 5 year detention far
exceed the periods in remand of Lukanov, Assenov or Nikolova.

4. In all the aforesaid matters I respectfully remind the Section that

officials of the Bulgarian judicial authorities obstruct this Applicant and
many others in our efforts to obtain copies of Rulings. Making our
applications to the Court difficult, if often not impossible.

5. … [sic]

V. Government Documents [Evidence] Demanded

165. On 16 April 1999 the Court ruled … (1st petition and court Ruling)
166. On … the Court ruled …
167. On 29 November 1999 the Applicant petitioned the Court (see Exhibit No …) to
subpoena the Main Public Prosecutor’s Office, Republic of Bulgaria (hereinafter “MPPO”)
to produce or order the production, inter alia, notes; directives; memos; reports; all
private criminal complaints of embezzlement [Article 203, Criminal Code] as lodged up to
and including 28 November 1995 and any audits in support of the accusation thereof;
all private criminal complaints of misappropriation [Article 206, Criminal Code] as
lodged up to and including 12 February 1996 and any audits in support thereof; all
private criminal complaints of fraud [Article 211, Criminal Code] as lodged up to and
including the available 12 February 1996 MPPO documents and evidence claimed by the
Government as proving the existence of, inter alia, 9065 victims of the embezzlement;
3400 statements of claim of witnesses against the Applicant as collected by MPPO by the
aforesaid date; a 382 page computer report listing what the Government represented as

48
 9000 fraudulent contracts proving Bulgarian citizens “deposited” 12,600,000 USD with
the Applicant and further the Government produce a list of the names of “dead souls”
[deceased Bulgarian citizens] claimed by the Government to the agencies of Interpol as
proving a large amount of dirty [criminal] money have been washed [laundered]” by the
Applicant.

168. On … the Court order that: (quote order to produce evidence)

169. On 6 December 1999 the Applicant petitioned the Court (see Exhibit No …) to seize
under Articles 116 item 5 and 133, Criminal Procedure Code [Bulgaria] documents and
material evidence previously subpoenaed by and for the defence but never having been
delivered. The Applicant’s grounds, inter alia, read:

1. Previous orders of this Court to institutions of the State to produce

evidence and documents in their possession as demanded by the
Defendant and defense have gone unrealized for the most part. The
National Investigative Service, the Bulgarian National Bank, the Tax
Department “Sredetz”, the Ministries of Finance and Foreign Affairs
and the office of the Sofia City Prosecutor have according to Court files
and the Defendant’s best information and belief ignored, denied,
obstructed, delayed or altered in some way the evidence and
documents demanded by the Court.

2. The Court has been unable for the most part to produce or secure for
examination by the Defense the demanded and requested by order of
the presiding judge documental evidence. The failure of the Court to
fulfil its obligation to the Defense to collect evidence essential to it is
indicative of a judicial process biased in favor of the prosecution.

3. The failure of the various state institutions to co-operate with this court
and the defense provides strong subjective and objective grounds to
conclude that new demands by this judge for evidence which may
establish the Defendant’s innocence and thus aggravate the
seriousness of the procedural violations and unlawful acts of various
officials against him will go unheeded once again.

And that furthermore or in the alternative the requested party will be

provided an opportunity to destroy or alter the materials demanded in
an effort to conceal their irresponsibility or participation in the
questionable legal and procedural actions undertaken by them.

The Defendant has submitted this petition sealed in the first instance
by registered mail directly to Her Honor Mitkova and, in the second
instance by registered mail to the Ministry of Justice and Legal Euro
Integration, office of the Minister. And has done so in consideration of
the aforestated. Being factual representations, of which Her Honor and
the Court are well aware. And in the interest of the secrecy necessary
to preserve, intact and unaltered, the nature, character and content of
the files and any other forms of written evidence in possession of the
parties cited herein and subpoenaed hereby.

170. The Applicant further petitioned additional documents be sequestered by the Court, his
request reads:

49
 Part II – The Documents Demanded

The Defendant demands the Court seize:

1. From the offices of Major Ivanov of the Bulgarian economical police

those files, documents, memorandums, reports, statements or other
protocols as provided to him by Advocate Mila Popova Bogdanova on
behalf of the Defendant’s company and on or before commencement of
the official preliminary inquiry. In September of 1995 Major Ivanov met
with and interviewed legal representatives of the Defendant and was
provided evidence and explanations in regard to the Defendant, as
listed on page 1 items 1-7 of Exhibit “A”.

This inquiry and criminal investigation with statements, reports,

protocols, letters or respective files precedes the Oct. 26, 1995 order to
commence inquiry by Prosecutor Blagev. Yet is neither reference, nor
made a part of this case.

2. From the offices of Prosecutor Topurov of the Sofia City Prosecutor’s

Office, room 59A, floor 4, tel. 8871, ext. 365 those files, documents,
memorandums, reports, statements, claims, protests, interviews, letters
and any other protocols which were provided to him by Advocates Mila
Popova Bogdanova and Nadia Popova representatives of the Defendant
and company on or about October of 1994 and others.

Prosecutor Topurov 12 months prior to the second inquiry instituted on

October 26, 1995 against the Defendant upon the same subject matter,
was conducting an investigation of the Defendant, his company and
the depositary receipts distributed by. The investigation was instituted
at the request and upon the written complaint of the Supervisory
Committee of the Bulgarian National Bank.

The results of this 1994 inquiry and criminal investigation by the Sofia
City Prosecutor’s Office upon the same subject matter and subject
criminal inferences should be made a part of this case and so
available to the Defendant. The investigative conclusions therein are
not considered or reviewed by Prosecutors Blagev or Stoyanov yet are
directly related to the Sofia Prosecutor’s overall consideration whether
or not the Defendant’s activities could be considered criminal when
initiated by him in 1994.

3. From the offices of Prosecutor Topurov those files, documents,

memorandums, reports, statements, claims, protests, interviews,
letters and any other protocols which were provided him by
representatives of the Bulgarian National Bank on or about May
through October of 1994 and upon which he grounded the institution
of an inquiry against the Defendant and his company upon the subject
matter of distribution of depositary receipts.

4. From the offices of the Supervising Committee of the Bulgarian

National Bank and the offices of those individuals identified in the
complaints filed within Sofia City Prosecutor’s Office all files,
documents, memorandums, reports, statements, claims, protests,
interviews, letters and any other protocols which were submitted to

50
 them or by them to any other party concerning the 1994 activities of
the Defendant and his company.

171. Result

L. “Take Legal Action”

156. On 7 July 1995, in compliance with an agreement dated 15 May 1995, the Government
of Canada as represented by the RCMP [Royal Canadian Mounted Police] command
liaison officer, S. Sgt. Derek A. Doornbos, Embassy of Canada, Vienna, Austria, provided
in writing investigative conclusions and requests to Mr. Levicharov [phonetic], Director
of [the] Central Service for [the] Fight Against Organized Delinquency [Bgl phonetic -
Nacionalna slujba za borba s organiziranata prestapnost – NSBOP] by care of Mr. A.
Kosev, “KMC” [phonetic], Ministry of Home Affairs (?) (see Exhibit No …), that
correspondence, as translated from Bulgarian, the investigative conclusion, in part read:

“…[sic]…(a partner of ?) MAXWELL and a former accomplice of

KAPOUSTIN [Applicant] to his questionable operations [unidentified]
at the Vancouver stock exchange [British Columbia, Canada]…[sic]…It
was established that last year [1994] 4 million and 12 million
USD had been transferred to several bank accounts [in Canada]
of [Ivon] SHEARING …[sic]…It was established as well that other
accounts of SHEARING had been credited with amounts of about
100,000 USD per day. …[sic]… It is considered as well that most
probably a considerable part of these amounts come from the
funds [cash] accumulated in Bulgaria by KAPOUSTIN [Applicant]
through large-scale financial frauds carried out by his
pyramidal structure “LIFECHOICE” [LCIAD]. Besides this it is
established that the transfers go through banks in the Caribbean
Islands.”

( [ ] and emphasis Applicant’s)

157. RCMP Command liaison S. Sgt. Doornbos goes on to invite in writing that
the Government [Bulgaria] conduct investigative action and criminal
prosecution of the Applicant, thereby precipitating a joint Canadian
Government sponsored search and seizure of property and cash the property
of the Applicant and others in Canada, as translated from the Bulgarian the
invitation reads:

“Now each piece of information or even only supposition [by Bulgaria]

whatsoever about eventual breach of Bulgarian Law by
Kapoustin [Applicant] connected with LifeChoice that your
service[NSBOP] could submit [to Canada], is of special importance for
the investigation in Vancouver [Ivon Shearing]. In this instance our
service [RCMP] in Vancouver would be able to obtain search warrants
of the office premises and houses of the aforesaid subjects. In this
situation we consider there is every possibility we can successfully
conduct a large scale joint investigation as a result of which the assets
[16,000,000 USD] of SHEARING & Co [Applicant] in Canada will be
confiscated and it would be comparatively easy to prove in front of the
court that these are proceeds from criminal activities [in Bulgaria].
…[sic]

51
 Can a criminal prosecution of any character at all [nakazatelno
proizvodstvo ot kakavto I da bilo harakter] be started against
Kapoustin [Applicant] or Life Choice [LCIAD] ?”

158. An additional request to Mr. Levicharov and the Government agency NSBOP
is embodied in the 7 July 1995 as translated from the Bulgarian language, it
reads:

5. “Have you any additional data or operational information in what

direction the funds obtained by LifeChoice [LCIAD] are being
transferred out of Bulgaria [Caribbean or Canada]?”

159. On 17 July 1995, on account of the aforestated [see above § … to § …] investigative

conclusions and requests by RCMP Command Liaison, Embassy of Canada, S. Sgt. D.
Doornbos, the Government, through the agency and instrumentality of the Central
Service For [the] Fight Against Organized Delinquency [NSBOP], upon the order of “M”
[ Bulgarian phonetic], as countersigned “MV”, commenced to “Take legal Action”5 against
the Applicant.

160. On 7 September 1995 Prosecutor Mindova, Sofia City Prosecutor’s Office (“SCPO”)
provided the Sofia Department, Ministry of Home[Internal] Affairs (“MHA”), Ecinomic
Police Sector 02 (see Exhibit No …) material containing data for fraud [in Bulgaria] as
provided from the Canadian Embassy, Vienna, Austria through the facilities of the Main
Public Prosecutor’s Office (“MPPO”), Republic of Bulgaria, the English translation of the
letter reads:

“Herewith enclosed we send you a translation from English language of a

material sent to MPPO of RB by the Central Service for Fight against
Organized Delinquency – MHA according to information from the
Canadian Embassy in the Republic of Austria concerning the activities of
company Life Choice Int. AD. This material contains data for fraud by
Michael Kapoustin and other persons. To be attached to the
correspondence and verified.

We send you a letter from the Finance Ministry (the abbreviation is not
readable well) – Sofia Tax Administration as well to be attached to the
correspondence.

Enclosure: as per text.”

159. On 13 December 1995, according to a written memorandum, (see Exhibit No …)

subsequent to the Order of Detention [Arrest] as issued by police investigator
[“sledovatel”] S, Georgiev [see after § …] and his 30 November 1995 request to Interpol
[see after § …], a meeting was occasioned in Sofia, Bulgaria upon the subject of the
Applicant. In attendance at the offices of A. Alexandrov [phonetic] were, inter alia,
Anatolii Kossev6 - department of “International Relations”, MHA; Miroslav Genov, Central
Cervice for [the[ Fight Against Organized Delinquency (“CSFAOD”); Roumen Andreev,

5
….
6
On … Anatoli Kossev (“Kossev”), an official of the Government was appointed to the Applicant as his “court”
designated translator. In being part of investigative actions against the Applicant Kossev was, by statute according to
national law [Criminal Procedure Code, Article 90 § (2)], an interested and therefore bias party to proceedings
against the Applicant.
On … the Applicant by written petition and later orally before the Court complained:

52
 deputy chief, National Investigative Service (“NIS”) and police investigator [sledovatel] S.
Georgiev.

160. The said Memorandum was directed to Mr. Rashkov, Head, National Investigative
Service, the relevant parts as translated to English read:

Mr. Rashkov,

… [sic]…

… [sic] …

… [sic] …

During the conversations held in an operative order we specified that it

is of mutual interest for the Bulgarian and Canadian authorities to
establish the entire criminal activity of Michael Kapoustin in his large
scale financial frauds and the incoming to Canadian and Caribbean
banks of millions of USD from East and West Europe.

Mr. Doornbos submitted a visiting card and the fax message on which
we could ask our questions to the Canadian Economic Police in
Vancouver and they would send a response on what they had done in
an operative order through CSFAOD or NIS.

…[sic] …

161. On 1 April 1996 a fax was received from the Embassy of Canada, Vienna Austria, this
motivated by and subsequent to the Applicant being arrested by authorities of the
Federal Democratic Republic of Germany (“FDRG”) on 7 February 1996 [see after § …]
as according the information provided Interpol 30 November 1995 by investigator
[sledovatel] S. Georgiev. The fax of RCMP Command Liaison Attaché, S. Sgt. Doornbos as
directed to Mr. Roumen Andreev, Deputy Director, National [Prosecution] Investigative
Service reads:

“You will recall that we met in December 1995 in the office of

Mr. Stefan Gueorgiev. Deputy chief of the Economic Division. I
am aware that Kapoustin has been arrested on your behalf in
Germany some weeks ago. I am advised by the police in Sofia
that the case of Kapoustin now falls entirely within your
jurisdiction.

Could you advise please if your further investigation had

determined [the were how or] end destination of the money
which Kapoustin defrauded from [Bulgarian investors]

Were you able to identify offshore banking institutions,

account numbers [illegible]

I am asking this as it is a very real possibility, as suggested in

December that some of the funds may have been eventually
transferred to Canada. If you have any information in this regard
please advise. If not we will close our file with respect to
Kapoustin and LifeChoice.”

53
([ ] and emphasis Applicant’s)

162. On 1 August 1996 particulars of the Applicant’s case and previously only rumoured
Canadian co-operation appeared in interviews with supervising police investigator
[sledovatel] and arresting [see before § …] officer, S. Georgiev and Chief Prosecutor of
the Sofia City Prosecutor’s Office, Nestor Nestorov as published in “Continent”
[“Kontinent”] newspaper (see Exhibit No …), a nationally distributed daily, Prosecutor
Nestorov confirming to journalists Canadian and Government mutual interest in
criminally charging the Applicant, the English translation reading:

“Mr. Nestoriv said ‘that Canada and Bulgaria will struggle [as to] which country is
going to bring action against him [Applicant]’”

163. Among the misrepresentations alleged by police investigator Georgiev to journalists as

his investigations conclusions and the facts provided from Government Canada
authorities were, inter alia, that criminal charges in Canada were unclear; LifeChoice
was not a Canadian corporation [ [see before § …]; Applicant was convicted in Canada
for sexual assault of minors; 18,000,000 USD was transferred from Bulgaria [see before
§ …] to the Caribbean and the Applicant was an internationally wanted swindler.

164. On or about 9 August 1996, subsequent to a request by the Applicant the Government
of Canada, Embassy to the FDRG, Bonn, issued a statement to the FDRG (see Exhibit
No …) in part the “Note Verbale” reads:

“… [sic] …

The Canadian Embassy would also like to draw to the attention of the
Foreign Ministry an article that was published in the Bulgarian
newspaper Kontinent on 01 August 1996 which quotes the Chief of the
Economic Crimes department of the National Investigation Department,
Mr. Stefcho Georgiev, as stating that Michael Kapoustin ‘committed
sexual assaults against minors, according to information received from
the Canadian authorities’. This statement is not substantiated.

The department of Foreign Affairs and International Trade of Canada

has consulted Canadian and International police authorities, and
confirm there are no records of this nature in Canada regarding Mr.
Kapoustin.

Considering the above, the Canadian Embassy again expresses its

concern with the climate that is being created in Bulgaria by the
authorities in anticipation of extradition, and asks the German
authorities to confirm that they are satisfied that Mr. Kapoustin would
reveive fair and equitable treatment within the Bulgarian legal process,
were he to be extradited.

… [sic] …”

161. On 14 August 1995, a fax transmission (see Exhibit No …) from RCMP Command
Liaison, S. Sgt. D. A. Doornbos, was received in reply to 31 July 1996 inquiry by Colonel
D. Vangelov, Director “CSCOC [acronym unknown]”, Ministry of Interior [Home] Affairs
concerning the firm “International Pharmaceutical Suppliers [Inc.]” [see before § …],
relevant parts of the text read:

54
 “Further to your fax 389/31.07.96 I passed the information therein
onto our Proceeds of Crime Unot in Vancouver. … The firm … is
not/not known in police indices in Canada … [sic] … For any criminal
traces of this company in Texas inquiries would have to be made by
your prosecutors office with USA authorities.

Aside from the Canada wide criminal warrants [unidentified] of arrest

for Kapoustin [Applicant] Vancouver POC [Proceeds of Crime] has
confirmed that several civil lawsuits have also been filed against
Kapoustin [Applicant], LifeChoice and Don Maxwell in the courts in
British Columbia.

Could you please pass this information to Mr. Stefan Gueorgiev

[Georgiev] of the National Prosecution Investigative Bureau [agency
unknown] and ask him to please advise us when or if any
information is found regarding Kapoustin [Applicant] having
transferred monies to Canada.”

([ ] and emphasis Applicant’s)

162. On 23 August 1996, by way of fax (see Exhibit No …) RCMP Command Liaison S. Sgt.
Doornbos provided Colonel D. Vangelov, Director, Central Service for Combating
Organised Crime (CSCOC) (NSBOP) [see before § …] a 6 page investigative report and
conclusions by Government of Canada agencies in Vancouver, British Columbia as
prepared by S. Sgt. Vander Graff (Acting) Officer in Charge, Proceeds of Crime Section at
the request of the Government [Bulgaria], the relevant parts of which read:

“Re: Michael Kapoustin [Applicant]

Proceeds of Crime Investigation

7. As noted … [sic] … the purpose of receiving civil files to determine

information contained in them may be relevant to the criminal
investigations in Canada and Bulgaria with respect to Kapoustin, et al
[others, underlined].

8. … [sic] …

9. … [sic]…

10. … [sic] …

11. ….

12. …
………

15. Detective Desmarais has not approached Don Maxwell [see before §
…] and requested an interview as yet. Maxwell was obviously very
involved in the LifeChoice [Canada] business as well as other
business ventures involving Kapoustin until their apparent ‘falling out’.
Maxwell also is likely in possession of information with respect

55
 to the Kabalarian7 funds transfer [see before § …Ivon Shearing]
which, as you know, was the original precipitator of the
Vancouver PCS [Proceeds of Crime Section] investigation. At
present, there does not appear to be a substantial likelihood of
charges [against Applicant] arising from the Kabalarian
[Canadian] side of the investigation however to properly complete
the investogation Maxwell should be interviewed.

16. The Def. Desmarais is prepared to conduct the interview of Maxwell

and direct whatever questions the Bulgarian authorities may have to
Maxwell, however because of the volume of material in the civil court
registry as well as the complicated nature of the Bulgarian fraud
investigation, some consideration should be given to a Bulgarian
investigator attending Vancouver …[sic]”

163. RCMP Command Liaison, S. Sgt. Doornbos requests in the aforesaid 23 August 1996 fax
that Col. D. Vangelov forward it to police investigator S. Georgiev going on to say in the
fax which reads:

“The attached message (page 2 thru 7) were received from the

Vancouver RCMP Proceeds of Crime Unit. There is some information
therein that may be useful for Mr. Stefan GUEORGIEV of the National
Prosecution Investigation Bureau [obviously NIS] with respect to
Kapoustin and companies and accounts that he had in the Caribbean.

Could this be passed to Mr. Gueorgiev and ask that he in turn pass
any comments he may have on to me directly. I am still very much
interested in any indication he has that any of Kapoustin gains from
the fraud in Bulgaria ended up in Canada.”

164. On 2 July 1997 RCMP Command Liaison, S. Sgt. Doornbos, in response to a telephone
call on 25 June 1997 and a later 26 June 1997 fax, provided a copy of a British
Columbia Civil Action, Applicant as Plaintiff, to replacement police investigator 8 Rumen
Kirov, the letter (see Exhibit No …) closes with a request that reads:

“Subject: Michael KAPOUSTIN (Kapoustin) et al

…[sic] …

I am still awaiting in writing, confirmation, information and a Rogatory

Request promised by Mr. Stefan Gueorgiev regarding funds that
Kapoustin transferred to Canada, specifically to the law office of
McCandless, Morrison & Verdicchio.
Please advise this regard.”

165. On 1 November 1996 a letter (see Exhibit No …) was provided the Ambassador, Embassy
of Canada, Bucharest, Romania, concerning the Applicant and his Company [LCIAD].
That letter occasioned a complaint as often repeated by investors and alleged victims of
the Applicant, the letter is signed by 16 representatives and reads:

“We are writing you on the occasion of the detention of the

Canadian citizen Mr. Mihail Kapoustin.
7
…
8
…

56
 We are investors in “LifeChoice International” – AD, Bulgaria, whose
executive director Mihail Kapoustin is. We are sincerely concern[ed]
about his health condition. We think that his detention causes serious
damages to the activities of the company and our interests.

We are asking for your help in obtaining a permission to visit Mr.

Mihail Kapoustin, as so far, regardless our repeating requests to the
appropriate authorities, we have no[t] received any answer.”

166. On 23 May 1997 (see Exhibit No …) Canada Foreign Affairs received a case note (Note
sur le cas) concerning the Applicant’s arrest/detention, the relevant parts read:

“Consul and HonCon visited subj 15 May. Subj appeared to be in

good physical condition but was mentally distressed as a result
of his continued detention and lack of news concerning setting
of trial date. Legal counsel has advised him that trial date (if
there is to be one) may take another one or two years. It proved
impossible to obtain any corroborating info from investigator’s
office.

Corruption abounds within the prosecutor’s office according to local

news reports. Investigator Georgiev has been removed from office with
a replacement to be named in coming weeks. Whether this will or will
not delay proceedings remains to be seen. Legal counsel advises they
are having access problems as a result of a more rigorous application
of existing law; they will pursue matter of access with prosecutor’s
office. Subj. also complained that since consul’s last visit 18 March he
had been denied access to exercise facility on a regular basis.
Temporary investigator/replacement (deputy?) stated that the problem
would be resolved. HonCon has been asked to follow up on a regular
basis during the period June/September and will forward reports via
cons/[illegible] Bucst.

Subj. has requested CANADA advise him as to what steps/process

may be used to hasten investigation and trial. According to him and
his legal counsel Bulgaria has already been taken to the European
Court of Justice in Strasbourg for a case of illegal detention. Court
decision approx. 2 months was in favor of the plaintiff against
Bulgaria. Subj wishes to follow same route and legal counsel stated
they may file suit in July. Subj has also requested German authorities
be advised that he is not being tried for offences for which he was
extradited and has asked for Germany to assist with having case more
speedily brought to trial. Subj has requested that you keep Mr. Kap
informed of all measures taken.

Diplo note which follows was presented to MFA 15 May. Ambassador

Duguay will pursue matter with MFA and Prosecutor during visit
scheduled for 11 – 13 June.

… [sic] …”

167. On 15 May 1997 the Canadian Government presented Bulgarian Minister of Foreign
Affairs …, a diplomatic note protesting. inter alia, the maximum period of remand [in
arrest] expires 1 June 1997; concerns that detention will be further extended; the

57
 investigation’s already considerable length; that arrest warrants date back to 17 July
1995; the investigation was conducted as well during Applicant’s detention in the FDRG
plus nine (9) months since Applicant’s extradition; that 26 months to investigate was
adequate time to fix the final charges and order trial or alternatively release Applicant
pending same; further investigation and detention amounts to punishment without trial;
all others, similarly charged in other cases had been released and therefore the
Applicant should be released on bail [security] pending trial.

168. Derek A. Doornbos is employed by the RCMP, an agency and instrumentality of the
Government of Canada, during the period in question as a staff Sgt. Assigned as liaison
to the Embassy of Canada in Vienna, Austria, he is principal author of all
correspondence as affected which the Government [Bulgaria] and responsible for
accessing and collecting all information and data derived in Canada and delivered the
Government concerning the Applicant including but limited to that setout above.

169. During the period of April 1995 to September 1996 there is no evidence that the Ministry
of the Attorney General of Canada (the “Minister”) or the Minister of Foreign Affairs as
being in any way aware of RCMP Command Liaison Officer S. Sgt. Doornbos’ conduct,
intent or purpose to prosecute and arrest the subject of his investigation and seize
documents and assets in Canada and a foreign state [Bulgaria] on account of a criminal
investigation and conclusions established in and on behalf of Canada. Neither is there
any indication that the Minister had controlled, ordered or otherwise condoned the
conduct and the alleged breaches of privacy and Charter rights during the investigative
period arising from the acts and violations of law. The Applicant, in the absence of any
constitutional authorities lawful participation was and is unable to pursue a cause of
action to bring the case presently at bar within the purview of s.32 of the Charter (Mike I
don’t think we need this sentence here – M.).

170. The 7 July 1995 [see above § …] investigative conclusions and request provided the
Government as represented by RCMP Command Liaison S. Sgt. Doornbos
correspondence sets out and qualifies conclusions of the writer [Doornbos] elevated to
the status of “official facts” and “conclusions“ of the Government of Canada without the
knowledge, consent or order of his immediate superiors and in violation of the principles
and procedures of law under “Mutual Legal Assistance In Criminal Matters Act”,
Chapter M – 13.6 (RS 1985, c. 30 (4th supp.)) 1988, c. 37, assented to 28 July, to which
the Defendant was legally incumbent as an official of Canada.

171. On 25 July 2000 the family of the Applicant brought civil action in British Columbia
Supreme Court (see Exhibit No …) against RCMP Command Liaison S. Sgt. Doornbos
and others wherein it was alleged that Canada Charter of Rights and Freedoms and
consolidated Federal and provincial Privacy Act(s) [R.S.C. 1985, R.S.B.C. 1996] had been
breached. No action against the Government of Canada was possible under civil Action
No, S004040, Vancouver Registry on account of the acts as alleged were “de jure
gestionis” and not “de jure imperii”. Paragraphs 41 and 42 of the claim read:

43. “The Plaintiffs have not asserted that the Claim falls within the
purview of Section 32 (1) of the Canadian Charter of Rights
and Freedoms (the “Charter”). Had the Plaintiffs so elected they
would allege breaches of s. 15 (1) which triggered “a situation
that is simply unacceptable” [ see USA v. Arllard (1991), 64
C.C.C. (3d) 159 at p. 522] under s. 12 of the Charter, the acts in
question and consequences thereof offending the Canadian
sense of what is fair, right and just under s. 11 (a) and (d), s. 9,
s. 8 and s. 7 of the Charter in relationship to the nature of the

58
 cause and considerations of comity and security, and after
having granted due latitude and having maintained a perspective
for the reasonable requirements of law enforcement as
demonstrately justifiable in a free and democratic society. The
breaches of Charter rights arise from the violations of law
pleaded herein. This court, in such instance, would have
competent jurisdiction in this district over the subject matter of
this claim pursuant to s. 24 (1) of the Charter. Plaintiffs would
then claim that the officials, agencies and instrumentalities of the
Government of Canada did violate the law promulgated under the
(Provincial) Protection of Privacy Act [R.S.B.C. 1996] Chapter
165, Section 15 (h), S. 30 and S. 28 in conjunction with S. 22 (1);
the (Federal) Privacy Act [R.S.C. 1985] Section 8 (1) and further
re-allege that the acts and transactions of, inter alia,
preparation of false, misleading and slanderous materials; the
sending abroad of same; causing the public distribution and
publication of information protected by law and the preparation
and delivery abroad of official reports and documents was
adequate proof of common law torts of privacy, defamation and
slander as having occurred in this Court’s district.

41. Plaintiffs would further allege that violations of law and the
Charter arise from acts affected by a foreign state, its agents,
agencies and instrumentalities against the person and property
of citizens of Canada, in Canada and abroad, the conduct of said
agents, agencies and instrumentalities, directly and vicariously
causing, inter alia, threats, accusations, menaces and violence
without reasonable justification or excuse; cruel and unusual
treatment and punishment; deprivation of security of person and
right to life; discrimination on account of national or ethnic origin
and religion; disclosures of information to the public harmful to
the individual and a violation of the right to privacy; threats to
safety, mental and physical health; disclosures of information to
the public resulting in undue financial loss and burden;
disclosures of information to the public which were knowingly
inaccurate, incomplete and unreliable, thus damaging unfairly
the reputation of the person(s) referred to therein and having
been compiled and identified as a part of a Canadian
investigation into a possible violation of law in Canada;
disclosures of information to the public which inaccurately,
unreliably and slanderously indicated untrue sexual orientation,
religious belief or association of the person(s) named therein and
Plaintiffs would claim vicarious liability on the part of the
Government of Canada for its participation in aiding and abetting
the violations of law alleged and for having subjected to cruel
and unusual treatment the Plaintiffs. In one instance the liberty
and security of person is denied in an alleged violation of
fundamental and civil rights apparently with the direct
participation of a peace officer and diplomat of Canada.”

172. The interaction between relevant Canada Law, police and judicial agencies and
instrumentalities of Canada and those of Foreign Governments are regulated by the
mutual Legal Assistance In Criminal Matters Act [see before § …]

59
173. In instances where no treaty exists between a requested or requesting foreign state
[Bulgaria] the Act reads:

6. (1) Where …… the Minister of Foreign Affairs may, with the

arrangement of the Minister, enter into an administrative
agreement with that other state providing for legal assistance…

6. (3) An administrative arrangement entered into under subsection

(1) or (2) may be implemented by the Minister pursuant to this Act,
in the same manner as a treaty.

6. (6) In any legal or other proceeding, an administrative

arrangement entered into under subsection (1) or (2) and
purporting to be signed … by a person designated by the Minister
of Foreign Affairs is admissible in evidence … proof that it is
what it purports to be.

7. (2) Where a request is presented to the Minister by a foreign state

or a Canadian authority, the Minister shall deal with the request in
accordance with the relevant treaty and this Act.

16. No record or thing seized that has been ordered under Section 15
to be sent to the foreign state mentioned in subsection 11 (1) shall
be so sent until the Minister is satisfied that the foreign state has
agreed to comply with any terms and conditions imposed in respect
of the sending abroad of the record or thing.

17. (1) Where the Minister approves a request of a foreign state to

obtain, by means of an order of a judge, evidence regarding an
offence with respect to which the foreign state has jurisdiction
…

17. (2) The competent authority who is provided the documents or

information shall apply ex parte for an order for the gathering of
evidence to a judge of the province in which the competent
authority believes all or part of the evidence may be found.

18. (1) A judge to whom an application is made under subsection 17

(2) may make an order for the gathering of evidence, where he is
satisfied that there are reasonable grounds to believe that

a) an offence has been committed…;

b) evidence …may reveal the whereabouts of a person

who is suspected …in Canada.

18. (2) An order made under subsection (1) must provide for the
manner in which the evidence is to be obtained …and may

b) order a person named therein to make a copy of a record or

to make a record from data and to produce the copy or record to
the person designated …[sic]

60
173. Sections of the Canadian Charter of Rights and Freedoms (“Charter”) embody in their
text basic principles of international law as recognized by the European Community of
Nations and enshrined in the Convention, Charter sections appropriate to this
Application read:

11. “Any person charged with an offence has the right:

a) To be informed without unreasonable delay of the specific
offence;
b) … [sic]
c) …[sic]
d) to be presumed innocent until proven guilty according to
law in a fair and public hearing by an independent and
impartial tribunal;
… [sic].
12. Everyone has the right not to be subjected to any cruel and
unusual punishment.
7. Everyone has the right to … [sic] … security of person and the
right not to be deprived thereof except in accordance with the
principles of fundamental justice.
9. Everyone has the right not to be arbitrarily detained or
imprisoned.

174. Beyond Charter requirements the conduct of police agencies [RCMP] or instrumentalities
[Embassy of Canada], and the exchange of information, investigative actions and reports
[to Bulgaria] are setout at the provincial [British Columbia] level in those laws
promulgated under the Privacy Act [R.S.B.C. 1996] Chapter 165, Section 15(h), s. 30
and s. 28 with s.22, which read:

15. (1) The head of a public body may refuse to disclose information
to an applicant if the disclosure could reasonably be expected to:
a) … [sic]
g) …[sic]
h) deprive a person of the right to a fair or impartial
adjudication.

30. The head of a public body must protect personal information by

making reasonable security arrangements against such risks as
unauthorized access, collection, use, disclosure [public] or
disposal.

28. If an individual’s [Applicant] personal information will be used

by a public body to make a decision that directly affects the
individual, the public body must make every reasonable effort to
ensure that the information is accurate and complete.

22. (1) The head of a public body must refuse to disclose information
to an applicant if the disclosure would be an unreasonable
invasion of a third party'’ personal privacy.

(2) In determining under subsection (1) or (3) whether a disclosure

of personal information constitutes an unreasonable invasion of a
third party’s [Applicant] personal privacy, the head of a public

61
 body must consider all the relevant circumstances, including
whether
a) … [sic]
d) … sic]
e) the third party will be exposed unfairly to financial or
other harm
f) … [sic]
g) the personal information is likely to be inaccurate or
unreliable, and
h) the disclosure may unfairly damage the reputation of any
person referred to in the record registered by the
Applicant.

(3) A disclosure of personal information is presumed to be

unreasonable invasion of a third party’s [Applicant] person
privacy if
a) … [sic]
b) the personal information was compiled and is identifiable
as a part of an investigation into a possible violation of
law, except to the extent that disclosure is necessary to
prosecute the violation or to continue the investigation,
f) …[sic]
g) the personal information consists of personal
recommendations or evaluations, character references or
evaluations about the third party [Applicant]
h) … [sic]
i) the personal information indicates the third party’s racial
or ethnic origin, sexual orientation or religious or political
beliefs or association, or

175. Federal law as promulgated under the Privacy Act [R.S.C. 1985] section 8 (1) which
reads:

8. (1) Personal information under the control of a government

institution shall not, without consent of the individual to whom it
relates, be disclosed by the institution in accordance with this
section.

(2) Subject to any other Act of Parliament, personal

information under the control of a government institution may be
disclosed
a) … [sic]
e) …[sic]
f) under an agreement or arrangement between the
Government of Canada or an institution thereof and …
the Government of a foreign state, an international
organization of states or an international organization
established by the governments of states, or any
institution of any such government or organization, for the
purpose of administering or enforcing any law or
carrying out a lawful investigation

176. During the period in question (1995 – 1997) there were no rules for co-operation in
police investigations with foreign states. A new Criminal Procedure Code (CPC) was

62
 promulgated in S.G. 64/1997 according to which agencies or instrumentalities of
Government were required to conduct their co-operation in police [criminal]
investigations with foreign states within the procedural rules of Chapter Twenty Two
Section VI. The relevant Articles read: (from Mike)

177. According to national law preliminary proceedings [investigations] to an alleged crime

are instituted only upon qualification of certain criteria and at the order of a prosecutor
with qualified jurisdiction. The relevant Articles setout in Part two, Chapter twelve,
Section I and II of the Criminal Procedure Code and read: (Mike)

178. Government control over information or data concerning the results of a preliminary
investigation are regulated by CPC Article 179 which reads: (Mike)

179. It is incumbent upon Government agencies or instrumentalities to “forewarn” an

enterprise [LCIAD] if the conducting of certain activities or the acts of its employees or
officials establish reasons or conditions suggesting possible indictable activity. CPC
Article 184 reads: (Mike)

180. Alternatively where insufficient data exists to effect a preliminary proceeding, the
Ministry of Interior [Home] Affairs may conduct their own inspection inside pendant of
and unhindered by the aforesaid national law as provided by Article 190 of the CPC in
effect at the time which reads: (Mike)

181. In all instances it is apparent from national law that preliminary “inspection” and
preliminary “proceedings” afford Government agencies or instrumentalities equal power,
in the former instance unsupervised or judicially controlled, in the later supervised and
controlled by a prosecutor as appointed to each particular instance according to
appropriate jurisdiction and venue as setout in Articles 175 and 176 of CPC whose
relevant parts read: (Mike)

182. An investigation is to be instituted only subsequent to a “successful” preliminary inquiry

[see before § …] and any later proceeding instituted by an instrumentality of the Main
Public Prosecutor’s Office [see before § …], investigation is obligatory as charged
[Applicant] under Article 203 Criminal Code (CC) [see after § …] and is to be investigated
by the National Investigative Service, Articles 195 and 196, CPC in effect in 1995 read:

195.(1) …(Mike) crimes under Articles 124, 131a, 134, 152, 162 – 167,
169, 198,201-205, 212, 220 – 223, 240, 243, 282-285, 304-307, 320,
321 and 341 of the Criminal Code
(2) … [sic]

196.(Mike)

Interpol

183. The operational exchange of information between police agencies or instrumentality of

Government may be conducted between offices of Interpol, in the absence of a treaty, an
agreement or other arrangement, may be conducted, to a limited degree and in
compliance with the national legislation of the respective parties and international
law.

63
184. As of 1990 offices in member countries are known as National Central Bureaus (NSB’s)
and in 1990 consisted of more than 150 national law enforcement agencies, Canada for
some time and effective Government membership in the last years.

185. A 1988 United States Department of Justice manual describes Interpol as:

“…something of a legal curiosity. It [Interpol] conducts inter-

government activities, but it is not based [organized] on an [any]
international treaty, convention, or similar legal instrument [legislated].
It is founded on a constitution…never submitted for ratification by [the
respective] governments.”

186. On July 4th 1989, 13 members of the Council of Europe issued a motion calling for an
extensive investigation of Interpol. Some extracts from this motion include:

• Interpol operates internationally with no governmental oversight

from any of its member organisations.
• Interpol provides dossiers, on request, via computer interlink, to
police organisation in member countries around the world, amongst
which are Iran and Libya who have shown to be involved in
international terrorism
• Interpol organised as a private organisation by police officers,
never submitted its constitution for ratification by any government,
has located its headquarters in France where it has been granted
immunity from the legal process by the Government of the French
Republic thereby placing the organisation above the laws of any
land, not being legally accountable for its acts.
• Individuals and organisations have unable to rectify the files in
them that Interpol, while having conclusively proven they were
false, has sent uncontrolled across borders, secretly showing them
to judges, leading in several cases to wrong imprisonment of the
civilians involved.
• Interpol insists that its highest priority is stopping the flow of
international trafficking, while in recent years. Interpol officials
have been reported as being involved in drug trafficking in several
South American countries and possibly others.

The motion then calls for the following:

e) The status of Interpol with the Council of Europe should be

reviewed;
f) An inventory of transgressions committed by Interpol should be
drawn up;
g) Effective ways to control the International Criminal Police
Organisation, Interpol, in a democratic fashion should be
considered …so Interpol hereafter will be accountable for its acts;
h) Strict measures should be elaborated and recommended to ensure
that a refusal by Interpol to reveal and rectify files on request by
an individual or organisation is scrutinised by an independent,
democratically chosen committee that controls Interpol…”

Facts
Arrest and Extradition

64
187. On 7 February 1996 Applicant while in transit at Frankfurt International Airport to his
family in Kavala, Republic of Greece, was placed under arrest at the request of Interpol
by airport police authorities of the Federal Democratic Republic of Germany (“FDRG”)
and remanded to the … in accordance with Article 16 § 1, European Convention on
Extradition (“ECE”) which reads:

188. On 2 September 1996 Applicant was extradited by the FDRG to the Republic of Bulgaria
to face trial on accusations and charges embodied in a 28 November 1995 and 12
February 1996 Order(s) of Detention [warrants of arrest] issued by one police
investigator S. Georgiev, National Investigative Service (“NIS”) and authorised by
supervising prosecutor M. Stoyanov, Sofia City Prosecutor’s Office (“SCPO”) as presented
by the Government in its effort to comply with Article 12 § 2 (a) of ECE, which reads:

189. Applicant and defence counsel [FDRG] protested before the High Region … Court
[Frankfurt] that the respective Orders of Detention [arrest] submitted by the Government
as issued by a police investigator and authorized by the case prosecutor neither
complied with Convention Article 5 § 1 abstracts (b), (c) and (f) or Article 6 § 1 on the
grounds that, inter alia, the arresting police investigator and prosecutor were not
“impartial”; the order did not originate from a “competent legal authority”; defence
documental evidence refuted factual claims alleged as corpus delicti by Government;
the Applicant in not having been first heard or subpoenaed by the Government had
violated its national law; the documents submitted by the Government under Article 12
§ 2 (a) ECE had not been issued by a court or magistrate (Amtsgericht) and therefore
were incompatible with German basic and international law; that a possible sentence of
30 years on an accusation of misappropriation of a private company's assets was in
contradiction to European logic and a situation that is simply unacceptable to the
European sense of what is fair, right, just and humane; and the circumstances were
criminally aggravated by the misrepresentation of the Government as embodied in the
German text of the Orders of Detention [Arrest] as prepared by it and presented to the
FDRG, wherein the Government represented police investigator [(sledovatel),
(untersuchungsführer)] S. Georgiev knowing and fraudulently as a magistrate
[untersuhungsrichter] in order to secure extradition of the Applicant.

190. On 26 July 2000, the Applicant, in a civil proceeding (see Exhibit No …) commenced by
his wife and son before the British Columbia Supreme Court claimed an allegation of
scienter against [civil defendants] police investigator S. Georgiev, SCPO prosecutor M.
Stoyanov and others, the scienter allegation reads:

116. This alleged violation of law arises from the November 28,1995
“orders of detention” produced by Defendants Georgiev and
Stoyanov at the direct or indirect inducement of Defendant
Doornbos, whereupon and subsequent to the Defendant
Georgiev did on November 30, 1995 and again on Feb. 12, 1996
provide to Interpol Sofia requests of which the substantive
content was known by Defendants to be false and principally
grounded upon the unconfirmed allegations, conclusions and
slanderous representation of Defendant Doornbos, thereby
directly and indirectly inducing agencies and instrumentalities of
the Federal Democratic Republic of Germany (hereinafter
“FDRG”) to wrongfully arrest Plaintiff Kapoustin at Frankfurt
International Airport on Feb. 7th, 1996. It is alleged the ensuing
208 days detention of Plaintiff Kapoustin by the FDRG and his
subsequent handing over to Defendant Bulgaria and additional

65
 1405 days of captivity, did permit, facilitate and aid the
Defendants in proceeding with their malfeasance, slander,
planned extortion and other violations of law.

117. Defendants were no longer obstructed or otherwise hindered by

the Plaintiffs who, in fear for the safety and life of Plaintiff
Kapoustin and at the request of agencies of the Government of
Canada, ceased to interfere with or publicly protest the unlawful
acts of the Defendants.

118. The alleged herein unlawful arrest of Plaintiff Kapoustin

demonstrates the Defendants acted with scienter in that : they
knew the “orders of detention” issued and later statements
made by them as officials acting in the name of Defendant
Bulgaria were materially false, misleading and procured by
them with no regard for the procedures for so doing as
promulgated under Bulgarian domestic law; Defendants
Georgiev and Stoyanov knew their statements as “officers of
law” and “prosecuting authorities” of the Defendant Bulgaria
would not be subjected to any proper legal tests by the FDRG as
to the merits; Defendants knowing fully well the FDRG unwilling
and disinterested to investigate Plaintiffs’ attorneys’ claims as
made to the alternative; knew that on account of the official
slanders made by Defendants as alleged and proven herein co-
mingled with the Jewish ethnic and Russian origins of Plaintiff
Kapoustin and on account of Defendant Bulgaria
misrepresenting in its Feb. 16, 1996 Request for Extradition the
residency and citizenship of Plaintiff Kapoustin as Bulgarian the
FDRG in a common discriminatory conduct of its courts would
participate and acquiesce to the Plaintiff Kapoustin’s arrest,
detention and extradition without exercising the required due
diligence the FDRG may otherwise have undertaken, had
Kapoustin not had Jewish and Russian ancestry and the therein
alluded to Bulgarian residency and citizenship.

119. It is alleged the “orders of detention” were known to the

Defendants and FDRG to be primary violations of prevailing
international law and practice. The “order of detention” could
prove to the Defendants and FDRG a legal obstacle to their
planned malfeasance and extortion, if tested by a court of the
FDRG and Defendants’ scienter discovered.

120. The said documents, in and of themselves, were insufficient and

not in compliance with the prevailing international legal
precedents for arrest, detention and extradition by a third party.
The Defendants to give effect to their unlawful intent to gain
bodily the Plaintiff Kapoustin undertook to and could engage in a
fraudulent scheme due to their official control over the content of
documents and statements made to the FDRG as translated and
officially transmitted by them in the German language.

121. The Defendants engaged themselves in providing to the FDRG

materially misleading misstatements with a reckless disregard
for the falsity and misleading nature of the information which

66
 they caused to be disseminated. In particular Defendant
Bulgaria knew and should have known that Defendant Georgiev
was not a “hauptuntersucungsrichter” (“chief” or “presiding
investigative judge”) or “untersuchungsrichter” (“investigative
judge”) as was fraudulently and misleadingly set out in the
“orders of detention” as well as other documents and statements
made to the FDRG.

122. Defendants to attain their unlawful objectives and to facilitate

the violations of law herein alleged, knowingly disregarded or
failed to correct to the FDRG these misleading misstatements or
to disclose to the FDRG that Defendant Georgiev was in fact an
“untersuchungsführer” (police “investigator” (“sledovatel”))
and did not in this, his official capacity, meet the internationally
recognized criteria as an “officer” authorized to exercise “judicial
power” to order the deprivation of liberty or extradition of
Plaintiff Kapoustin. Case law prevailing at the time (see
Schiesser v. Switzerland judgement, 4 Dec., 1979, ECHR) and
recent decisions ( see Assenov and others v. Bulgaria, 28
October 1998 and Nikolova v. Bulgaria, 25 March 1999
judgements, ECHR) have held that such “officer” must satisfy
certain conditions providing a guarantee to the detained person
against arbitrary arrest. Thus the “officer” must be independent
of the executive and of the parties.

123. Defendants Georgiev and Stoyanov who issued the “orders of

detention” of November 28, 1995 and February 12, 1996 and
which constituted, in totus, the grounds for arrest, detention
and extradition by the FDRG, would not meet any criteria of
international law had not the Defendants participated in the
fraudulent scheme arising by virtue of the materiality of their
misleading misstatement in documents provided by them to the
FDRG.

124. Defendant Georgiev had no independence or impartiality (see

Huber v. Switzerland judgement 23 October 1990 and Brincat v.
Italy judgement 26 November 1992, ECHR), nor did he
undertake to attempt to hear the Plaintiff Kapoustin in person
and to review, by reference to legal criteria, whether or not the
“order of detention” could be justified by the prosecution
represented by Defendant Stoyanov. In Assenov and others v.
Bulgaria the ECHR found, inter alia, that neither an
investigator (“sledovatel” or “untersuchungsführer”) or
prosecutor who had, at first instance, approved the “order of
detention” could be considered to be the “officers” authorized by
law to exercise judicial control within the meaning of prevailing
international case law. The facts of the alleged violations herein
bear no material difference to the decisions referenced above.
Defendant Georgiev did not have the power to make a decision
as to Plaintiff Kapoustin’s arrest, detention and extradition and
to therefore bind the FDRG to comply with his request nor can
Defendant Stoyanov who approved the “orders of detention” be
considered an “officer(s) authorized by law to exercise
judicial power”.

67
125. Under prevailing international law Defendant Stoyanov, as
prosecutor, was not sufficiently independent or impartial for the
purposes of law since he could and in fact continues to act as a
subsequent party to the proceedings instituted by him and
Defendant Bulgaria against the person of Plaintiff Kapoustin and
did control at the time the assets of the Plaintiffs.

126. This same principle applies to statements submitted by the Main

Public Prosecutor of Bulgaria, Ivan Tatarchev, on February 16,
1996 to the FDRG, the contents of which are grounded in their
entirety upon the fraudulent and unlawful actions of the
Defendants as alleged herein and are therefore not materially
different although issued independent of the Defendants.

127. During the aforesaid period the Defendants carried out a

continuous plan, scheme and course of conduct which was
intended to and throughout the period did; deceive the public
and the Government of the FDRG as alleged hereto and so
caused the FDRG to deeply humiliate the Plaintiffs by unlawfully
arresting, detaining and extraditing Plaintiff Kapoustin, by so
doing the FDRG did directly and indirectly, harm and injure the
Plaintiffs in furtherance of the unlawful scheme, plan and course
of conduct the Defendants who undertook the unlawful actions
set forth herein.

128. The Defendants employed devises, schemes and artifices to

defraud and slander; made untrue statements of material fact
and/or omitted to state material facts necessary to make the
statements not misleading; engaged in acts, practices and a
course of official conduct which operated as a fraud and deceit
upon the Plaintiffs, the FDRG and the public, which included the
physical and mental torture of the Plaintiff Kapoustin, emotional
and physical anguish of other Plaintiffs. Defendants acted in an
effort to humiliate the Plaintiffs and to gain for the Defendants
and/or others the Plaintiffs’ assets in order to as well protect the
Defendants from discovery and prosecution; to gain, as agents
for Defendant Doornbos, a reward and benefit, for affecting acts
vicariously relating to affairs of his principal, Canada; to
enhance their official positions and to secure the substantial
compensation and prestige they hoped to obtain by so doing.

129. The Defendants did as well conceal evidence of crimes against

justice, humanity and the person of the Plaintiff Kapoustin as
known by them and in evidence. In abnegating their
responsibility to law and failing in their joint and several
incumbency to report new crimes, the Defendants jointly and
severally become culpable and liable for the injury and harm
caused the Plaintiffs as setout herein.

130. Defendants, individually and in concert, directly and indirectly,

by use of their official office and the means and instrumentalities
made available to them, engaged and participated in a
continuous course of conduct to conceal their activities and their
employment of official devices of the Government of Canada in

68
 British Columbia and elsewhere, the schemes and artifices of the
Government of Bulgaria as used by them to defraud officials of
the FDRG and public while in possession of material facts and
information adverse to their objects and so engaged in the acts,
practices and course of conduct as alleged herein in an effort to
encourage others to believe in the Plaintiff Kapoustin’s guilt and
likely substantial financial benefits to be realized by others from
the Plaintiffs’ assets.

131. Defendants’ acts included, inter alia, the making of, or the
participation in the making of, untrue statements of material
facts and omitting to state material facts necessary in order to
make the statements as they were made, not misleading, as set
forth more particularly herein, and engaged in practices and a
course of conduct which operated as a fraud and deceit upon the
public, the Plaintiffs and the FDRG and a slander upon the
Plaintiffs’ honor and reputation.

132. The individual Defendants’ primary liability and official personal

liability arises from the following facts: they were high level
officials of the Defendant Bulgaria and the Government of
Canada; by virtue of their responsibilities and activities as senior
officials the individual Defendants were privy to and participated
in the coercion, development, preparation, delivery and
enforcement of official documents and statements; each of the
individual Defendants enjoyed significant personal contact and
had access to other officials, agencies and instrumentalities of
Defendant Bulgaria and the Governments of Canada and the
FDRG; the individual Defendants were aware at all times and
had in fact facilitated and effected that there would be direct and
indirect dissemination of humiliating, slanderous and untrue
data on the Plaintiffs to the public and official agencies and
instrumentalities of foreign governments which they knew to be
slanderous. Defendants recklessly disregarded and encouraged
the information’s materially false and misleading nature.

133. The Defendants had actual knowledge of the slanders,

misrepresentations and omissions of material facts set forth
herein, or acted with reckless disregard for the truth in that they
failed to ascertain and to disclose such facts, even though such
facts were available to them. Such Defendants material
misrepresentations and/or slanders and/or omissions were
done knowingly and recklessly and for the purpose and effect of
concealing their violations of law, malfeasance and actual
motives from the public, officials of the Governments of Canada
and the FDRG and the Plaintiffs. As demonstrated by the
Defendants slanderous overstatements and misstatements of the
facts through the periods in question, the Defendants, if they did
not have actual knowledge of the misrepresentations, slanders,
malfeasance and omissions and other violations of law alleged,
were in the least reckless in failing to obtain such knowledge.

134. Defendants have deliberately refrained from taking those steps

necessary to discover whether those documents and statements

69
 were false or misleading. Individual Defendant’s ignorance of
the fact that other Defendants as officials of the Defendant
Bulgaria and Government of Canada were providing directly or
indirectly false and misleading documents and statements and
relying upon the individually responsible Defendants’ integrity
as an official whose representation must therefore by default be
truthful even in the presence of materially adverse information
provided by the Plaintiffs and Plaintiff’s attorneys, provides no
excuse or relief from liability or culpability for the
consequentially injuries and damages suffered by the Plaintiffs
as a direct and proximate result of the Defendants’ wrongful
conduct or willful ignorance.

135. At all relevant times, the Defendants, individually and in concert,

directly and indirectly, engaged and participated in a continuous
course of action and conduct whereby they knowingly provided
public representations which they knew to be materially false
and/or misleading and would cause direct personal injury and
financial harm to the Plaintiffs. This continuous course of
conduct resulted in the publishing and electronic transmission of
media statements and official documents that were false,
misleading and slanderous as to their content.

136. The Defendants’ conduct materially influenced the market place,

financial institutions, business associates and the public against
the Plaintiffs by inciting a rancor and enmity, which has caused
the Plaintiffs’ emotional anguish and a deep humiliation, from
which they are unable to recover. These acts of the Defendants
operated as a fraud and deceit upon the public and business
associates of the Plaintiffs causing financial injury and loss.

137. The Plaintiff Kapoustin and his business activities in Bulgaria,

prior to his arrest were the sole financial support for his family.
The unlawfully seized property and business represented all the
assets of the Plaintiffs of which the Plaintiffs Tracy and Nicholas
are owners, beneficiaries and heirs to the income and value
represented and upon which they were dependent.

138. The Defendant Bulgaria is a direct participant in the wrongs

complained of herein. The individual Defendants are liable as
direct participants and as controlling persons of the wrongs
complained of. Because of their positions and authority as
officials of the Defendant Bulgaria, and the Government of
Canada the individual Defendants were able to, and did, directly
or indirectly, control the content of the public statements relating
to the Plaintiffs.

139. The Individual Defendants did cause or control the issuance of

public statements containing the slanderous and misleading
representations alleged herein.

140. The Individual Defendants had actual knowledge of the facts

making these public statements and official documents false,

70
 misleading and slanderous or acted with reckless disregard for
that they failed to ascertain and to disclose such facts, even
though same were available to them.

141. As a result of the Defendants’ malfeasance, slander and

unlawful arrest of Plaintiff Kapoustin, his son, now aged 7
(seven) years, has been wrongly and unjustly deprived for 5
(five) of those years of the love and affection, nurturing care,
guidance, companionship and comfort of a father during his
young life. The consequences to Plaintiff Nicholas of his
depression, confusion and anxiety are best expressed in the
physical manifestation of his stress as expressed by contracting
Diabetes Type I at the age of 4 (four) years.

142. The actions of the Defendants have reduced the natural life
expectancy of Plaintiff Nicholas and placed a burden upon a
young life, which is immeasurable in financial or material terms.
The Plaintiffs shall be weighed with the expense of special
medical attention and care and a lifetime of anxiety over the
health and well being of their 7 (seven) – year old son.

143. The unlawful seizure and destruction of the Plaintiffs’ property

and assets by the Defendants has further denied Plaintiff
Nicholas his rightful inheritance and future opportunity.

144. As a result of the Defendants’ malfeasance, slander and

unlawful arrest and inhuman treatment of the Plaintiff
Kapoustin, his wife of 12 years, the Plaintiff Tracy has been
denied the love, companionship, emotional and financial support
in assistance towards living expenses and comfort of a husband
and friend. The public humiliation of being forced upon the
public dole and the damaged reputation and loss of income and
property have caused Plaintiff Tracy to accept social and
financial aid from family and friends in order to care for the
Plaintiffs’ diabetic son and to finance her fight to free her
unlawfully detained husband.

145. The extreme stress, personal anguish and anxiety born of the
demands of what is an unjust and undeserved burden have
physically manifested themselves in ill health requiring constant
medication and the regular attention of physicians, thus causing
added financial hardship upon the Plaintiffs.

146. As a result the Plaintiff Kapoustin’s elderly parents Robert and

Tatiana, due to the humiliation and anxiety they suffered from
the Defendants’ malfeasance, slander, unlawful arrest and
inhuman treatment of their son, with attempts by the Defendants
to extort money from them and the threats made in the process
thereof against their and their son’s safety and lives as the
alternative to non payment, caused Robert and Tatiana to suffer
grievous personal anguish and anxiety which proved to be the
direct cause of the physical and mental deterioration and illness
of Plaintiff Kapoustin’s 67-year-old mother Tatiana, whose failed
health has placed her under ongoing institutional care and
requires the constant attention of her husband, Robert, who at

71
 78 years of age has had to bear the emotional and financial
burden of his wife’s care with that of the Plaintiff Kapoustin’s
sister Sonia Jordan, neither of whom, in the absence of the
Plaintiff’s support are able to financially sustain the care of
Tatiana and themselves and their effort to protect their son and
gain his freedom.

147. These unjust emotional and material demands have caused the
Plaintiff Kapoustin’s elderly parents to lose their home of twenty
years, which to them has been second to the resultant loss of the
love, care, companionship and affection in the winter of their
lives of the son unlawfully denied them.

148. As a result of Plaintiff Kapoustin’s deep humiliation, damaged

public and business reputation and the deep emotional and
physical trauma caused by the Defendants in their five year
unlawful imprisonment of him and the Defendants’ unlawful
seizure, exploitation and depletion of the Plaintiffs’ assets, the
Plaintiff Kapoustin is not now nor shall he ever be able to realize
for the rest of the years of his natural life the support of his
family or the possibilities, business success, personal
aspirations and fulfillment he might have otherwise realized as
a father, husband and businessman, which have been and have
forever been denied him by the Defendants.

149. As a result the Plaintiffs have jointly and severally incurred

certain special damages, loss and expenses and further loss
and expense in the future, particulars of which will be provided
on request.

Accusations and charges

191. On 28 November 1995, police investigator (sledovatel) S. Georgiev brought a charge of

embezzlement qualified according to Criminal Code, Article 203 §1, the accusation
reads: …

192. The charge and accusation of embezzling money and property of LCIAD was brought [on
account of the lawful departure and absence of the Applicant] in absentia [Articles 217a
and 268 § 3 and § 4, Criminal Procedure Code] but only subsequent to the appointment
by NIS investigator S. Georgiev (see Exhibit No …) of former deputy prosecutor, later
practicing attorney, Ms Villiana Gaganishka - Stoycheva 9, as Applicant's public defender,

9
Article 69 § (1), Criminal Procedure Code states a defence counsel shall be appointed by an accused [the
Applicant]. Further Article 72 § (2) of the Code specifically expresses that defense counsel may only be replaced "at
the request or with the consent of the accused". At no time had the Applicant requested the replacement of his
attorneys retained by LCIAD [Mila Popova Bogdanova, Kamen …, Plamen Yalnasov, etc. …] and acting as well on
the Applicant's direct behalf in all matters in Bulgaria, neither can an attorney voluntarily withdraw or be removed
from acting on the Applicant's behalf, Article 71 of the Code reads: "Mike…". Alternatively Article 70 § (3) of the
Code considers where a "respective authority shall be obliged to appoint" a defense counsel, such an occasion
arising when, inter alia, a possible punishment of not less than 10 years; an accused does not speak Bulgarian; the
accused has physical or mental disabilities or the case [investigation or inquiry] is to be conducted in his absence. It
is obligatory under Article … of the Law on Advocacy (Zakon za Advokaturata) in such an instance that the attorney
be appointed not by the investigation, police officer (sledovatel) Georgiev, as is the case under the Applicant's
instance, but rather by the respective [Sofia] Bar Assocoation (Sofiiska Advokatska Kolegia - SAK). Article …
reads: …(Fanny). Upon the foregoing facts, and others, the Applicant did subsequently on …lodge a complaint of

72
 and then, subsequent to her written endorsement of the said 28 November 1995 Order
of Detention [arrest] did SCPO Prosecutor M. Stoyanov dutifully order the arrest and
detention of the Applicant

193. On 30 November 1995 NIS investigator Georgiev directed a request to Interpol (see
Exhibit No …) as predicated under Criminal Procedure Code Article 13310 to search with
objective to arrest and extradite the Applicant on account of the 28 November Ruling to
bring a charge of embezzlement as qualified under Criminal Code Article 203 para (1).
The data provided to Interpol as relevant to this Application reads:

"We dispose of the following established and concrete data:

- …[sic];
- Some data [unidentified] exist that MICHAEL KAPOUSTIN has
developed his “Pyramidal structures” in the territory of five countries –
Canada, USA, Bulgaria, Greece and Georgia;
- … [sic] …;
- We dispose of data that MICHAEL KAPOUSTIN and his wife TRACY
KAPOUSTIN live at present in Greece in the town of Kavala in an
apartment on 14-B,Plio St. he has bought a villa on 16,Yadras St.
- Being an executive director (Chief Executive Officer) of Life Choice Int.
AD in Sofia his last address in Sofia is Sofia, 96-A,Rakovski St., first
floor. He has offices in Sofia on 16,Knyaz Batemberg St., entrance V,
fl. 6, apt. 27 as well as on 3,Krakra St. – premises of the National
Institute of Infectious and Parasitic Diseases. Such an office he has got
in Plovdiv on 52,Ruski Blvd.
- The investigation under inv. case 195/95 as per the schedule of the
National Investigation Service is being carried out in the absence of the
accused MICHAEL KAPOUSTIN at present by virtue of art. 217a and
under the conditions of art. 268, par.3 and 4 of PPC of Bulgarian
Republic.
- We received data from the Central Service for Fight against Organized
Delinquency, their ref. 3233/July 17th,1995 that the Canadian police
in Vancouver are interested in the international malfeasant activities of
M. Kapoustin and his subsidiary companies, some of them have been
registered in the commercial register of British Columbia province since
1991, and in the following persons:

7. KARIN UTE BERGSON, born on July 15th,1942

8. DONALD MAXWELL, born on Oct. 23rd,1950
9. RADKA K. MILANOVA, born on Jan.1st,1954, living in Vancouver,
Canada
10. ARTHUR L. MORRISON, born on Jan. 12th,1935
11. MARY SLOAN, born on may 5th,1947
12. IVON SHEARING, born on April 12th 1928 – an associate of
KAPOUSTIN and MAXWELL in their questionable operations at the
Vancouver stock exchange in Canada. At present SHEARING is the
manager of a pseudo-religious organization called “CABALISTIC
PHILOSOPHY”. It was found out that in 1994 only 16 million USD had
been transferred to several bank accounts of SHEARING. Most of the
transfers came from Western Europe. Other accounts of SHEARING
criminal misconduct and malfeasance against Advocate Gaganishka - Stoycheva, which reads: … to date no action
has been taken by any respective Government authority.
10
…

73
 with local banks in Vancouver are being credited with amounts of
about 100.000 USD per day.

Most probably large-scale “money laundering” operations are

going on. The Canadian source of this information supposes
that it is most likely that a considerable part of these amounts
come namely from the funds accumulated in Bulgaria by
KAPOUSTIN through the large-scale financial frauds carried
out by his pyramidal structure “LIFE CHOICE”. The transfers
are effected through Caribbean banks.

Further to the aforesaid we ask for your assistance before Interpol for
arranging of bilateral meetings with the Canadian competent
authorities aiming at conveying information of mutual interest to both
parties.

At the end we ask you for urgent and active search of the accused
MICHAEL KAPOUSTIN through the structures of Interpol throughout
the world. There are data that the latter has circumvented Bulgarian
and Canadian Tax Legislation by cash transfers of large amounts in
USD and DM.

A conclusion should be drawn that through the ”pyramidal structure”

of Life Choice and by registering of “dead souls” as clients of the latter
large amounts of “dirty money have been laundered”.

194. At all material times during the period in question the Applicant's permanent residence
and legal counsels in Canada, McCandless, Morrison and Verdicchio, were known to
Canadian authorities in liaison with the agencies and instrumentalities of the
Government, who as well were aware, in addition thereto, of the Applicant's home at 14-
B,Plio St., Kavala, Greece and corporate offices of LifeChoice S.A. at …. Kavala, Greece
as was clearly evident from LCIAD corporate documents made available to the
Government, in addition to the foregoing the Government, as its agencies and
instrumentalities were aware of, having been informed as to and had in fact interviewed
legal counsel of the company [see before § …] and the Applicant, thereby having made it
incumbent to subpoena the Applicant under the national Criminal Procedure Code
Article 268 para (3) and para (4) to first demand his attendance as is obligatory under
domestic law setout in conjunction with Article 217a of the Code which reads: (Mike)

195. At no material time during the period in question did the responsible agencies or
instrumentalities of the Government undertake to subpoena or otherwise attempt to
notify the Applicant as required and setout in Article 158 CPC which reads:

…(Mike)
(8) In urgent cases (instances) subpoenaing may be effected by cable, telephone or other
appropriate way. (no (9))

and in the absence or refusal of an accused or summoned person serving may be

effected under Article 160 of the Code which reads: … (Mike)

196. On 15 December 1995 apparently after NCB Interpol refused th erequest of NIS
investigator Georgiev a second request to the Head of NCB Interpol Sofia, Mr. Hristov
was brought by MPPO Prosecutor Doichev as an order to be directed and followed by
Interpol without consideration as to the merits, quality or lawfulness of that request, in

74
 so doing the MPPO demanded Interpol NCB Sofia to apparently abnegate what
independence, if any, as international organization it might possess, the order reading:

I ORDER:

NCB “INTERPOL” – MHA to inform the bureaus of “INTERPOL” of the

member countries in order to trace (discover) MICHAEL KAPOUSTIN.
After finding him the latter to be detained (arrested) because of the
crime committed by him in the Republic of Bulgaria and the Bulgarian
party to be notified about this in order to send the necessary
procedural documents to extradite MICHAEL KAPOUSTIN to the
Republic of Bulgaria.

You are requested to notify the Main Public Prosecutor’s Office after
effecting the actions in connection with my order.

197. On 9 January 1996, NCB Interpol Sofia, on account of the direct order of MPPO,
Republic of Bulgaria issued a "red notice"11 directing other member states to effect the
detention of the Applicant on the grounds of, inter alia, Republic of Bulgaria Criminal
Code Article 203 for misappropriation; a punitive measure of 10 to 30 years
imprisonment; extradition being requested; embezzling funds from shareholders of
LCIAD; having organized similar activities in Greece, Georgia, Canada and the USA;
involvement in a Canadian pseudo-religious cult involved in money laundering; that
Bulgarian authorities seek to contact competent Canadian official(s) at Interpol Ottawa

198. The Applicant repeats and re-alleges each of the foregoing paragraphs § … to § …
inclusive as if fully set forth herein.

199. On 12 February 1996 new accusations and charges were brought (see Exhibit No …) by
NIS investigator S. Georgiev after his having being notified by the MPPO of requests to
the Government for documentation, in the German language and compliance with
Article 12 § 2 (a) ECE, the new criminal suppositions and purported facts as
represented to the FDRG read: (Where is this Mike?)

200. Attorney Stoycheva again dutifully as required by NIS investigator Goergiev did endorse
the new criminal accusationsbrought against the Applicant and charges qualified under
Criminal Code Article 206 § (4) 1, Article 211 and Article 313 § (2) 1. Subsequently
thereafter new Orders of Detention [arrest] were authorised by supervising SCPO
Prosecutor M. Stoyanov12.

201. On 16 February 1996 Main Public Prosecutor Ivan Tatarchev [Attorney General], MPPO
Republic of Bulgaria submitted13 a request [petition[ to the Ministry of Justice, FDRG,
the Minister, to extradite the Applicant to the Republic of Bulgaria. MPP Tatarchev
reoeated and re-alleged the contents of the 28 November 1995 and 12 February 1996
Orders of Detention [arrest] going on to state, inter alia, that remand in arrest of the
Applicant was qualified since 27 November 1995, by "default" under Criminal Procedure
Code, Article 152 § (1); that the investment contracts [Depositary Receipts]14 publicly
offered and floated in Bulgaria are not securities; LCIAD, a company managed by the

11
…
12
…
13
…
14
…

75
 Applicant, conducted illegal banking activity15; 9,000 individuals concluded investment
contracts [depositary receipts]16 equal to 12,620,000 USD; there existed as of the 12
February 1996 Order of Detention [arrest], in possession of the Government, 3,400
individual criminal complaints against the Applicant; private complaints allege breach of
contract, fraudulent representations and the forcing of 3,400 individuals to act against
their will; the unlawful acquisition of clinic drugs from outside Bulgaria; failure to
purchase the medicines from agencies or instrumentalities of the Government; failure to
import the purchase clinical drugs; the alleged misappropriation of 7,898,815 USD on
account thereof; avoided personal income tax due the Government and provided a false
personal tax declaration.

202. The Applicant repeats and re-alleges each of the foregoing paragraphs § … to § …
inclusive as if fully set forth herein.

203. On 2 September 1996 the Applicant, while still hospitalized and under doctors' care by
prison authorities of the FDRG, was forcefully removed from intravenous feeding and
hydration by police officers of the FDRG and transported, unconscious by police vehicle,
to a waiting Balkan Airlines flight where after being physically carried aboard the aircraft
by Frankfurt airport hospital staff the flight departed for the Republic of Bulgaria.

204. Extradition of the Applicant by the FDRG was predicated upon Government complying
with Article 14 § 1, ECE undertaking prosecution and trial of the Applicant only upon
those criminal elements and facts embodied in the 28 November 1995 and 12 February
1996 Orders of Detention [arrest] of police investigator (sledovatel) S. Georgiev as setout
above [see before § …]

205. On … investigator S. Georgiev was replaced by investigator Roumen Kirov, (see Exhibit
No …)

206. On 1 July 1998 NIS police investigator R Kirov [see before § …] after a three (3) years 12
days completed the investigative activities of the NIS, two (2) years 29 days after remand
in arrest of the Applicant. NIS investigative conclusions read: …

207. On 8 September 1998 the Applicant was remanded in arrest, solitary confinement, to
the Sofia Central Prison at 21, Stoletov St., Sofia, Bulgaria where he remains presently
imprisoned waiting trial.

208. On 5 October 1998 the MPPO by committee reviewed the 1 July final accusatory
conclusion of NIS investigator R. Kirov. Present were Main Public Prosecutor, Ivan
Tatarchev, MPPO Prosecutor M. Boyadjiev, SCPO Prosecutor G. Popov, MPPO Prosecutor
M. Doichev, SCPO Prosecutor V. Stanev and case supervising presecutors M. Stoyanov
and Pl. Tzankov, MPPO. The purpose of the meeting was to resolve confusion as to
accusation and charges should be brought against the Applicant. The resolution taken
refuted the NIS investigative result of 4 years and demanded Prosecutor N. Nestorov,
Chief prosecutor Sofia, SCPO bring new charges and in part reads: …

209. Supervising case Prosecutor M. Stoyanov, clearly in conflict with resolution conclusions
to introduce a "new" charge of embezzlement [Article 203, Criminal Code] provided in his
correspondence to Chief Prosecutor Nestorov, SCPO an opinion as prosecutor under the
case. It reads:

15
…
16
…

76
 "The qualification as per art. 203, ref. art. 211 of CC is a legal absurd
since the subject of offence is one and the same. After having
expressed once again my opinion upon the qualification of the act –
offence as per art. 211, CC taking in consideration the obligatory
orders of the higher prosecutors, I kindly ask for your written order in
the above mentioned sense."

210. ON 20 October 1998 SCPO M. Stoyanov issued a Ruling (Postanovlenie) whereby upon
the direct order of MPPO, he was returning the Applicant's case for an additional 20
days investigative action to bring a new accusation [embezzlement] and a charge under
Criminal Code Article 203, the Ruling in part reads:

I ASCERTAINED THE FOLLOWING:

The preliminary proceedings have been constituted and conducted

against MICHAEL KAPOUSTIN for an offence according to art. 203,
211, 206 of CC.

The case has been brought to an end and sent to SCPO with an
opinion to bring the accused Kapoustin before the court for offence as
per art. 211, CC.

After considering the qualification of the deed in the Main Prosecutor’s

office of the Republic of Bulgaria a new indictment should be brought
with disposition and numbers as follows:

For the reason that during the period of time between April 1, 1994
until July 31, 1995 in Sofia and throughout the country acting in his
official capacity as a manager, an executive member of the Board of
Directors, a person directing (managing) the financial assets of LCI AD
and owner of 75% of the registered capital of LCI AD, he embezzled
other people’s money – in foreign currency and BGL belonging to 4
731 persons amounting to a total sum of 509 302 760 BGL that was
handed to him having the said capacity and entrusted to him to keep
and administer it. These monies represent an especially large amount
and the case is extremely grave. From the said amount he has made
transfers made abroad amounting to USD 4 242 405.60 and DM 580
000 for the total equivalent amount of 259 963 817.20 BGL as it
follows:

I. …[sic]

II. He has embezzled as well the amount of 249 338 942.80 BGL (the
balance between 509 302 760 and 259 963 817.20 BGL) spending
the latter for advertising, sponsorship, office equipment, cars,
dividends, etc. and to facilitate the embezzlement has effected another
offence, for which the law makes no provisions for a more heavy
penalty – a penalty as per art. 211 provision 1; ref. art. 210, par. 1,
sec. 3, provision 1; ref. art. 209, par. 1; ref. art. 26, par. 1 of the
Criminal Code (CC) - acting in his official capacity as a manager and
an executive member of the Board of Directors of LCI AD, directing
(managing) the financial assets of LCI AD, aiming at obtaining for
himself and for LCI AD property benefits under the circumstances of a
continuous felonious activity, he aroused and sustained delusion in

77
 4,731 persons thus inflicting a property damage to them amounting to
509 302 760 BGL (in this sum included USD 2 481 228.87 equal to …
…………..; DM 345 706.13 equal to …………….). Kapoustin embezzled
the said amount subsequently. To collect the latter he organized,
ordered and took part in a public raising of depository funds in local
and foreign currency through issued and distributed against payment
ADR and ODR. The fraud is of a particularly large scale and the case
is extremely grave – the damaged persons and the damages incurred
equal to the amount of the deposits are as follows:…………………- a
list of the 4 731 persons to follow – as it has been done with the ruling
for final prosecution.

- an offence as per art. 203, par.1; ref. art. 202, par. 1, sea. 1; ref. art.
201; ref. art. 26, par. 1; ref. art. 211, prov. 1; ref. art. 210, par. 1, sec.
3 prov. 1; ref. art. 209, par.1; ref. art. 26, par. 1 of CC.
After charging the accused Kapoustin to be questioned in his capacity
of defendant, the matter (evidence) under the case to be submitted to
him.

In consideration with the aforesaid and by virtue of art. 180, 236 of

the Criminal Procedure Code,

I RULED:

I SEND BACK the preliminary proceedings for additional investigation

to observe the instructions in the substantive part.
The case to be sent back for the attention of investigator Kirov.
Term 20 days.

211. On 27 October 1998 NIS police investigator R. Kirov brought the new charges as
ordered. In the relevant part it reads:

"Today Oct. 27, 1998 in Sofia I the undersigned Roumen Kirov

investigator at the National Investigation Service (NIS) observe the
investigation actions ordered to me by virtue of a Ruling dated Oct. 20,
1998 of the Sofia City Prosecutor’s Office to bring a charge against:"

Police investigator Kirov thereafter repeats and re-alleges SCPO Prosecutor M.

Stoyanov's Ruling [see before § …].

212. On 29 October 1998 police investigator R. Kirov drafted and submitted an "Additional
Accusatory Conclusion" (Dopalnitelno obvinitelno zaklyuchenie) refuting his 27 October
Ruling, the complete text reads:

Today, Oct. 29, 1998 in Sofia I Roumen Kirov being an investigator at

the NIS assessed that the prerequisites as per art. 219 of the Criminal
Procedure Code (CPC) exist therefore I draft this accusatory conclusion
against:

MICHAEL KAPOUSTIN born on Nov. 6, 1952,

citizen of Canada for an offence as per art. 211,
hypothesis 1; ref. Article 210, par. 1, sec. 3,

78
 hypothesis 1; ref. Article 209, par. 1; ref. 26, par. 1
(rescinded SG 62/1997); ref. Article. 2, par. 2 of the
CC.

During the investigation I found out the following:

The inv. case has been sent to the Sofia City Prosecutor’s Office
(SCPO) with the opinion to bring the accused Kapoustin to trial by
virtue of the cited above texts substantiated in the Accusatory
Conclusion dated July 1, 1998, in which the factual circumstances
have been set out and the corresponding legal conclusions have been
made.

By a ruling of the SCPO from Oct. 20, 1998 the case has been sent
back for additional investigation with instructions for a new indictment
as per art. 203, par. 1; ref. art. 202, par.1, sec. 1; ref. art. 201; ref. art.
26, par. 1; ref. art. 211, prov. 1; ref. art. 210, par. 1, sec. 3, prov. 1;
ref. art. 209, par. 1; ref. art. 26, par. 1 of CPC.

These instructions were implemented on Oct. 27, 1998.

I totally support the legal conclusions drawn by me in the said

Accusatory Conclusion dated July 1, 1998.

I share the opinion of Mr. Mario Stoyanov – a prosecutor with the Sofia
City Prosecutor’s Office stated in his report …..(not readable)…. By the
City Prosecutor Mr. N. Nestorov.

To support the aforesaid I present the following:

The offences as per art. 201 –203 and 209 – 211 of CC are to be
found in Chapter five and like all the rest of provisions in it represent a
form of trespass upon property differing in the way of its expropriating
and in the official capacity of the person (thus the act as per art. 201 –
203 might be done only by an official in the meaning of art. 93 of CC –
funds have been handed to this official on legal grounds to keep and
manage them).

It has been found out under this case that the subject of the offence
are funds belonging to the deceived citizens. With each amount of
money incoming to the patrimony of LCI AD the effecting act of the
offence as per art. 211 of CC has been concluded. Both LCI and the
defendant Kapoustin being the main shareholder and the person to
dispose of the assets of LCI have been favoured. It is of no importance
for the character of the deed what subsequent actions have been
effected with the funds fraudulently acquired and whether or how
they have been spent.

The legal structure ordered by SCPO (art. 203, ref. art. 211) provides
that the funds fraudulently acquired once being expropriated later they
have been embezzled by the same person, i.e. a double appropriation
has been effected of an identical (coinciding) subject of offence. Fraud
in itself is a form of appropriation of other people’s property effected
by the method of misrepresentation to the deceived person(s). The

79
amounts acquired by the person through fraud have been already
appropriated, i.e. an illegal transformation of other people’s property
has been made and the offensive result aimed at has been obtained.
The executive act as per art. 201 – 203 of CC may begin only after the
property subject of an offence comes to the disposition of the person on
legal grounds but not by fraud. In this sense the structure as per art.
203 ref. art. 211 of CC would mean legalization of the fraud.

As far as fraud is concerned as per art. 209 – 211 the executive act
(deed) ends with the receipt of the funds to the person or someone else
and the acts of disposition are important only and as far as they
objectify the malice. The subsequent dispositions are not a part of the
corpus delicti. The bank transfers in favour of IPS (International
Pharmaceutical Suppliers) found by the investigation illustrate the
malice for fraud – they are acts that objectify it. In themselves the
otherwise “legal” expenditures of LCI such as salaries of the
personnel, advertising, rents, etc. that cannot be considered as
appropriation in the meaning of art. 201-203, also objectify the fraud
because they are in favour of LCI and of absolute damage to the
deceived. This has been charged to the defendant Kapoustin as an
offence as per art. 211 ref. art. 210 of CC.

The offences facilitating the appropriation may begin only after the
property has been handed on legal grounds but not by theft, robbery
or fraud, which represent by themselves forms of appropriation.

The factual circumstances show that the collection of deposits subject

of the offence has been effected regularly publicly and throughout a
year. At the same time regularly and throughout a year the acts of
disposition including the bank transfers in favour of IPS have been
effected as well. The qualification as per art. 203 of CC, if not
connected with art. 211 of CC, would mean that the malice of
Kapoustin for appropriation has appeared after the receipt of the funds
of the particular deceived person(s) to the patrimony of LCI, i.e. that
when promoting and distributing ODR and ADR the defendant has
acted as a good faith party to the transactions and that only the acts of
disposition of the funds acquired are illegal. It would mean that the
malice is not connected to the collecting of the funds subject of the
offence but it aroused only at and on the occasion of the system of acts
of disposition separately of the acts of collecting. This complies neither
with the factual circumstances established, nor with the logic of the
offence.

Taking into consideration the aforesaid the legal structure art. 203, ref.
art. 211 of CC is internally inconsistent, impossible and wrong.

Further to the aforesaid and by virtue of art. 219 and 221 of the
Criminal Procedure Code

I RULED:

Investigation case 195 from 1995 as per the schedule of NIS to be sent
with opinion to bring the accused Michael Kapoustin to trial by virtue of
art. 211, hypothesis 1; ref. art. 210, par.1, sec.3, hypothesis 1; ref. art.

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 209, par. 1; ref. art. 26, par. 1 (rescinded SG 62/1997); ref. art. 2, par.
2 of CC.

The rest of the charges brought up should be abandoned by virtue of

art. 21, par. 1 of CPC.

213. On or about February 1999 three (3) years after Applicant's remand in arrest, SCPO
Prosecutor M. Stoyanov submitted a final 23 page [English version] "Act of Indictment"
(Obvinitelen akt) formally charging the Applicant and essentially repeating the
accusation and charges as setout in the 5 October MPPO ordered Rulings of 20 October
and 27 October 1998. Judicial investigative proceedings by the Sofia City Court, 11th
staff, Criminal College under c.c.c.c. 1403/98 were instituted and set to begin 16 April
1999.

214. On 14 January 2000 the 9th month of judicial investigative proceedings and fourth year
of Applicant's remand in arrest, the new accusation against him as brought on 27
October 1998 was for a third instance again altered upon MPPO order. Case Prosecutor
M. Stoyanov, in open session, introduced new charges by altering the factual part of the
indictment as brought before the investigating court on 16 April 1999, the new charges
read: …

215. The Applicant and defence attorney A. Lukanov subject demand to explain the new
charge.

216. On … 2000 the Applicant lodged with Chief Prosecutor, SCPO, Nestor Nestorov a protest
and demand …(summarise later, dear)

217. On … replied

218. On … Applicant appealed the … decision of Prosecutor Nestor Nestorov to the Supreme
Cassation Prosecutor's Office (SCaPO) Republic of Bulgaria (summarise later)…

219. On … Prosecutor …, SCaPO ruled in answer to the Applicant's appeal …

220. On … petition to Judge Mitkova

221. Her reaction

222. Appeal

223. Appeal rejected

224. Essential to Applicant claims is a deliberation of numerous mass media reports, official
statements and documents as produced by officials, agencies and instrumentalities of
the Government which make reference to and offer conclusions about, inter alia, the
business of the Applicant; his moral character and sexual conduct; his religious and
ethnic associations; his alleged criminally accumulated wealth in Canada and elsewhere,
all of which are slanders and libels or misstatements and misrepresentations, each
falsehood embodied therein and elsewhere having been carefully calculated and uttered
with an official malfeasance intended to make impossible, for people of good faith and
conscience, to draw a coherent distinction between a statement of personal opinion,
conjecture or generalization by the responsible official, agency or instrumentality of the
Government or an assertion by it of fact.

81
225. Application complexity is necessitated by secret commissions of officials, agencies and
instrumentalities of the Government as revealed, proprio moto, in March, 1999 when
Applicant, in the presence of a translator, was, for the first time since his arrest in
February 1996, given access to case files and evidence against him and being further
illuminated on or about February 2000 when a part, but not all, of corporate
documents, as seized by the Government on or about October 1995, were returned to
the Applicant.

226. These secret commissions have been incorporated here and so arranged as to provide
evidence of events, circumstances and interchanges of the governments and private
actors of Government agencies as they occurred. Each such commission as setout
herein provides compelling objective argument to the allegations of Applicant of scienter
on the part of the Government.

II. Background

A. Applicant

227.The Applicant, Michael (Mihail) Kapoustin, was born on 6 November, 1952, 48 years old
and a naturalized citizen of Canada since 6 September, 1963 (see Exhibits No…, No… and
No…). Applicant and his family became resident in Canada upon their immigration thereto
from Hungary 16 December, 1956 (see Exhibit No…). From that moment up to 25 January,
1992 Applicant has never visited or resided within the Republic of Bulgaria.

228.There is no evidence available of the Applicant having been born in the Republic of
Bulgaria (see Exhibit No…).

229.The mother of the Applicant, an ethnic Russian, was born in Bulgaria, her parents and
brother remained and are still resident in the City of Plovdiv. Applicant’s mother represents
the only link between the Applicant and Bulgaria.

230.Applicant prior to visiting Bulgaria in 1992 had at no time attempted to speak or could
have spoken the Bulgarian language.

231.Applicant is of white Russian – Jewish origin. This fact is relevant under the instance on
account of the imprisonment of the father of the Applicant by Bulgarian fascist
occupational forces in Macedonia during WW II and the later imprisonment of the father of
the Applicant’s mother by Bulgarian interior police forces after the installment of the
communist government of 1949. Both men were arrested and tortured for approximately
one year on account of their nationality and ethnic origins.

232.The family of the Applicant has historically been victim to and directly experienced the
long and still practiced ethnic, political and religious discrimination and persecution
against foreign nationals by officials, agencies and instrumentalities of the Government.
The conduct and attitude of official malfeasance and public rancor and enmity evidenced in
the Application is consistent with the historic and still prevalent official practice of
discrimination and prejudice against non – Bulgarian ethnic and religious groups as well as
foreign nationals doing business or resident in Bulgaria.

233.The wife and 7-year old diabetic son of the Applicant continue to reside in Canada, the
parents of the Applicant and his sister reside in the United States of America.

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 B. Business of the Applicant

234.Since 1989 the Applicant (see Exhibit No …) has been employed to represent and act on
behalf of LifeChoice International Inc., a corporation then incorporated under the laws of
Antigua, Barbuda, West Indies and having its registered and records office at …

235.The principal business of LifeChoice International Inc., (hereinafter “LCI”) was to act as a
financial holding company and offshore depositary for foreign securities of privately and
publicly traded companies as well as debt instruments, inter alia, promissory notes;
accounts receivable; consignments; debentures and corporate bonds, having been, from
time to time purchased by or entrusted to it.

236.LCI financing was primarily facilitated by contributions from the Applicant, his family,
friends, business associates and acquaintances in Canada and the United States.

237.In 1991 LCI provided seed capital to form “Life Choice Pharmaceuticals Inc., a Canadian
federally incorporated company, (see Exhibit No …) and in so doing did acquire the majority
of its issued share capital.

238.The principal business of the aforesaid LifeChoice Pharmaceuticals Inc., (hereinafter

“LCP”) was to acquire rights to experimental proprietary processes or patentable
substances for use as clinical drugs in the treatment of cancer or HIV/AIDS, the objective
being to clinically research and test, then later license such substances to others for
manufacture and distribution.

239.LCI provided LCP the financial resources to acquire for a limited time conditional clinical
drug research and market development rights to, inter alia, a proprietary process for
manufacturing semi-synthetic VinBlastine and VinCristine, both well known clinical drugs
in the treatment of cancer; a new potential clinical drug, 3-4 DyhydroVinblastine, which was
derived from the aforesaid proprietary process; a proprietary process to tissue culture
Tripterygium wilfordii and isolate Triterpene acid compounds “A”, “B”, “C” and “D” having
marked inhibition in vitro on Lymphocyte proliferation (see Exhibit No …) and a new
process to extract and purify tetra and pentacylic oxindole alkaloids from Uncaria
tomentosa, in particular alloisopteropodine, Isomer A having proven stimulative effect on
phagocytosis increase (see Exhibit No …).

240.LCP, in order to raise additional capital to fund the clinical development, testing and
marketing of 3-4 DyhydroVinblastine (hereinafter “Dy – Alkovin”) did, with the assistance
of LCI and Swiss American Bank, St. John, Antigua, form and register in Canada the “Dy-
Alkovin Marketing Limited Partnership”, LCP as General Partner. Limited partnership units
were financed in part by Swiss – American Bank, proceeds of that financing held and
disbursed by LCI trustees as nominated by the financing bank

241.LCP, as General Partner, effected contracts for the laboratory and clinical testing of Dy –
Alkovin by the British Columbia Cancer Control Agency, Vancouver, British Columbia,
Canada. LCP management sought to reproduce this Canadian clinical drug research
programme for a smaller investment and accelerated approval for clinical use in an
emerging economy possessed of a high standard of academic accomplishment.

242.In late 1991 LCI, principal shareholder of LCP, and LCP directors (….) designated the
Applicant to identify foreign candidates for developing a clinical drug testing,

83
 manufacturing and distributing program for LCP products [see above § 19] modeled around
those agreements in place with the British Columbia Cancer Control Agency.

C. Choosing Bulgaria

243.On or about September of 1991 LCP management and the Applicant examined the
feasibility of new product research and development, limited manufacturing and clinical
drug trials in the Republic of Bulgaria.

244.LCP management undertook the decision after considering a number of objective criteria,
inter alia, that LCP director Dr. Radka Milanova, Phd. Chemistry and the Applicant had
family connections within the Republic of Bulgaria; LCP shareholder Dr. James Kutney,
Phd, Chemistry and Dr. Milanova, both professors of chemistry at the University of British
Columbia, had significant and long standing academic contact and exchanges structured
over years with scientific colleagues within the Republic of Bulgaria; Dr. Kutney and Dr.
Milanova were intimately acquainted with available facilities in Bulgaria, upon the foregoing
criteria LCP and LCI commenced their activities in Bulgaria.

D. Initial Contacts, Bulgaria

245.Intrinsic Research and Development Inc., a British Columbia corporation and subsidiary of
LCI was directed to establish initial contact with the Bulgarian Trade Commission, 100
Adelaide St., West Suite 405, Toronto, Ontario. Dr. Wayne Leyton, Phd. Chemistry, a
director of Intrinsic Research and Development Inc., and LCP director and shareholder, was
provided by Trade Commissioner I. Draganski on 16 October, 1991 information about
foreign investment in the Republic of Bulgaria (see Exhibit No … and No …)

246.On or about 31 October, 1991, the Applicant, upon the initiative and agreement of LCP
management, directors and shareholders did retain, by telephone and fax, the services of
Mr. Evgeni Zemljakov, the English speaking cousin [see above § 9] of the Applicant, then
resident in Plovdiv, Bulgaria. LCP officers, directors, management and shareholders were
personally acquainted with Mr. Zemljakov on account of an earlier visit to Canada by him
that year.

247.LCP directed Mr. Zemljakov to engage in contacting officials, agencies and

instrumentalities of the Government, including directors, officers and management of
wholly owned state commercial enterprises and academic institutions whom it was believed
might have an interest in technological, commercial and trade collaborations (see Exhibits
No …, No …, No …) with LCP and LCI.

248.As a consequence of the foregoing, Mr. Zemljakov did fix meetings for the Applicant with,
inter alia, Prof. Dr. Uzunov, MD, Phd., Biology, President of the Medical Academy of Sofia
(see Exhibit No …); Mr. Konstantin Kostov, Managing Director, Electronic and magnetic
Products, Plovdiv (see Exhibit No …); Prof. Dr. Dimitrina Mihailova – Kasabova, M.Ph.,
Ph.D., Science, Faculty of Medicine, Sofia (see Exhibit No …); the then Deputy Minister of
Justice Mr. …. (see Exhibit No …); the then Minister of Health Mr. … and Mr. Ivan Kirov,
Director International Connections, Ministry of Health (see Exhibit No …); Mr. Simeon
Georgiev, General Director, “Pharmacia”, City of Dupnica; Mr. Konstantinov, Director
Scientific Research Institute and Mr. Minev, Vice – President, “Antibiotic”, City of Razgrad
(see Exhibit No …); Mr. Nicholas Angelov, Attorney at Law – Plovdiv, (see Exhibit No …); Dr.
Dimitar K. Todorov, Director, Laboratory of Oncopharmacology, National Cancer Centre,
Sofia, mostly concerning his co-operative work with Dr. G. Deliconstantious in Phase I

84
 clinical drug trials of Thailiblastine in the United States (see publication “Experienta” No 38,
1992, Reference pg. 587), to ascertain possible parallels to clinical drug trials of Dy –
Alkovin (see Exhibit No …) and Dr. I. Yamboliev, Faculty of Pharmacy, Higher Medical
School, Sofia (see Exhibit No …).

249.On … , 1991 LCP, to effect and proceed toward its corporate objective of clinical drug
evaluation to be conducted by agencies and instrumentalities of the Government, did
provide to the Ministry of Health, the Republic of Bulgaria, at great expense to the limited
partnership [see before § 20], 2017grams of Dy – Alkovin, at a cost of 90,000 Canadian
dollars per gram (see Exhibit No …), together with the required data for toxicological
evaluation and Phase I clinical trial approval, having forwarded the aforesaid to the care of
Mr. Konstantin Kostov (see Exhibit No …), director of the state owned enterprise Electronic
and Magnetic Products, by Federal Express Courier, Way Bill No … to the City of Plovdiv.

E. Joint Venture Activity

250.On January 25th, 1992 the Applicant arrived in Bulgaria on Balkan Airline Flight No. 438
from Frankfurt for the first time since his 1952 visit, a span of 40 years.

251.Applicant had been dispatched by LCP and LCI with instructions to formalize, where
advisable and when possible, agreements with those Government agencies and
instrumentalities as contacted by Mr. Zemliakov [see before at § 27] and Applicant to effect
such acts, make needed cash disbursements and execute such documents as necessary to
bring about the corporate objectives of LCP and the Dy-Alkovin Marketing Limited
Partnership as setout above.

252.On February 23rd, 1992, on account of the foregoing acts and subsequent to the Applicant
departing Bulgaria and returning to Canada, LCP was advised by fax (see Exhibit No …)
that a joint venture company as proposed by Bulgarian legal counsel Attorney Angelov [see
before § …] was officially registered as “LifeChoice Pharmaceuticals Bulgaria Joint Venture
Ltd.” with LCP designated a partner together with Electronic and Magnetic Products, [see
before § …] a Government instrumentality, Mr. Zemljakov personally, holding in trust for
LCP, part of the joint venture equity and others as apparently required by law at the time.
The Applicant and Mr. Zemljakov authorized to act and effect documents on behalf of the
joint venture.

253.On 28 February, 1992 the Applicant was advised to return to Bulgaria in March of that
year to participate in working group meetings according to a prearranged plan negotiated
by Mr. Zemljakov. The Applicant held meetings in Bulgaria (see Exhibit No …) with, inter
alia, Professor Dr. Dimitar K. Todorov, M.D., Chief Department of Oncopharmacology,
National Oncological Centre, Sofia; Professor Dr. Petko Uzunov, M.D., Ph.D., Biology, Chief
Department of Pharmacology, The Higher Medical Institute, Sofia; Professor Dr. Dimitria
Nacheva Mihailova – Kasabova, M.Ph., Ph.D. Sc., Dean Pharmaceutical faculty, The Higher
Medical Institute, Sofia; Associate Professor Dr. Asen Ivanov, M.D. Ph.D., Chief,
Departments of Pharmacognosy and Pharmacological Botany, Sofia; Professor Dr. Zahari
Raikov, M.D., Ph.D. Sc., Higher Medical Institute, Stara Zagora; Professor Dr. James
Kutney, Ph.D., Chemistry, Chief, Department of Organic Chemistry, University of British
Columbia [see before § …]; Associate Professor Dr. Rahamin Daniel Shekerdjiiski, M.D.,

17
To date, all attempts by the Applicant to recover the 20 grams provided and research funds advanced or to
alternatively have results of tests delivered have been frustrated and proven in vain. Upon best information and
belief of the Applicant, it can be surmised that LCP funds and substances were not utilized or applied for the
purpose they were intended.

85
 Ph.D. Sc., Head, Department of Pharmaceutical Faculty, Sofia and Mr. Evgeni Zemljakov
present as co-ordinator and translator when required.

254.On 29 April, 1992, in addition to those Agreements affected with the foregoing officials,
agencies and instrumentalities of the Government, Mr. Zemljakov was authorized to affect,
on behalf of the LifeChoice Pharmaceuticals Bulgaria Joint Venture Ltd. (hereinafter
“LCPBJV”) a License Agreement (see Exhibit No …) with the National Centre for Infectious
and Parasitic Diseases, Medical Academy of Sofia, 26 Yanko Sakazov St., Sofia (hereinafter
“NCIPD”) for the exclusive distribution and marketing of its products outside Bulgaria.

255.The nature of the “exclusive right”18 to all NCIPD products outside of Bulgaria is embodied
in Section 1 (4) of the License Agreement which reads”

“1.(4). NCIPD agrees that it shall not offer its products …outside of
Bulgaria, under any other trade name except “LifeChoice” … that any
enquiries from outside Bulgaria are to be referred to LCPB[JV]; in the
alternative should NCIPD choose to conduct any such sale … it shall first
seek the approval of LCPB[JV]”

256.The NCIPD exclusive agreement remained in effect until December 31st, 1999.

F. Bulgarian Operations

257.Applicant in order to give effect to Bulgarian activities retained the services of, inter alia,
an office manager, Ms. Ada Jeleva Gogova; accountant/ bookkeeper Ms. Maya Petrova
Galeva; managers for commodity marketing and distribution Ms. Maria Angelova Dencheva
and Mr. Valentin Ivanov Parushev; Financial services and product development manager
Mr. Ivo Borisov Parushev; clinical drug program co-ordinator Mr. Vladislav Stoyanov Ninov;
consultants Dr. Bogdan Nikolov Petrunov, M.D., Ph.D.Sc., Dr. Rahamin Daniel
Shekerdjiiski, M.D. and Dr. Plamen Hristov Nenkov M.D., Ph.D. Sc. (see Exhibit No …); in
house legal counsel Attorney Milka Petkova Bogdanova; legal consultants, Attorneys Mr.
Plamen Yalnasov and Mr. Dancho Jikov and Sofia business partner and consultant Mr.
Tchavdar Georgiev Mladenov, former consul to Canada for the Republic of Bulgaria in
Toronto, Ontario.

G. Commercial and Trade Activities

258.On September 10th, 1992 Applicant, in order to expand Bulgarian activities beyond those
embodied in the clinical drug development and marketing of LCPJV as previously setout
herein, did effect a partnership agreement with the above said Tchavdar Georgiev Mladenov
wherein they did agree to form and give effect to a private limited company (“OOD”) “North
American Trade Organization – NATO” (hereinafter “NATO”), whereby it was agreed that 75
percent of the 50,000 Bulgarian [undenominated old] leva in cash equity would be paidin
by the Applicant on behalf of and as agent for LCI, said equity as evidenced by the
aforestated agreement and other documents, to be held by the Applicant, in trust, on behalf
of and as agent for and subject to the order and control of LCI and its successors and
assigns (see Exhibit No …), the 25 percent remaining equity to be acquired for cash paidin
by Mr. Mladenov for and on behalf of himself. As required under domestic law the 10th
18
Applicant, upon best information and belief, is confident sales did in fact take place in breach of Section 1 (4) as
quoted. At all times agencies and instrumentalities of the Government have consistently withheld particulars as
concerns foreign sales of NCPID products as a protected right and exclusive privilege granted under contract to
LCPJV.

86
 September partnership agreement was filed with the Sofia City Civil Court with a request
that NATO be registered as a private limited company under the Law on Commerce.

259.On September 30th, 1992 by decision No 24560/92 the Sofia City Court did enter into the
commercial register the aforesaid NATO (see Exhibit No …) and recognized, as General
Manager of the firm Mr. Valentin Ivanov Parushev [see before § …], designated by the
Applicant and Mladenov to conduct and oversee day to day activities of the said firm in
Bulgaria.

260.Applicant privately, on behalf of himself, his family, friends and business associates in
Canada and the United States, through the ways and means afforded him as agent for LCI,
did commence to provide cash loans and credits for goods and services to be sold in or
alternatively exported from Bulgaria, together with contributions of tangible and intangible
assets, inter alia, personal computers and parts (see Exhibits No …, …); Canadian and
American beer inventories and distribution rights (see Exhibits No …, …, …); alcoholic and
non-alcoholic inventories and distribution rights (see Exhibits No …, …, …); American
automobiles for resale and exploitation; heavy trucks and equipment; Canadian technology
and equipment for waste oil processing (see Exhibits No …, …, …); American technology for
crude and waste oil cracking and refining (see Exhibits No …, …); entertainment and
recreational equipment and facilities (see Exhibits No …, …, …); direct investment in
private company shares; financial and financing services for personal credit card
guarantees, short term debt, inventory and equipment financing.

261.In addition to the foregoing NATO did acquire from LCI the right in Bulgaria for exclusive
use of the trademark “LifeChoice” (see Exhibit No …) as registered by it on 27 April, 1993
and granted on 23 September, 1993.

H. Clinical Drug Activities

262.On account of the material representations of and contracts with officials, agencies and
instrumentalities of the Government including but not limited to those setout above, and
Applicant’s reliance thereupon, Applicant did institute negotiations with and make
commitments upon same to, inter alia, Mr. Dourblishvili Ramaz, General Director, Tiflis
Company and Mr. George Macharashvili, Manager, Mfskneta (?!), a Patriarchate association
of the Orthodox Church (see Exhibits No …, No …) acting on behalf of the Ministry of
Health, Republic of Georgia as represented by First Deputy Minister Vladimir Giorgadze
(see Exhibits No … and No …); Mr. Bruce Boyd, Founder Group and Assignee, T.B.R., a
Canadian investment group with offices at 1809 Olympus Way, Kelowna, British Columbia;
Mr. Casiniero Garcia of Pajaro de Fierro Inc., a corporation incorporated under the laws of
the State of Mexico, a representative of the Ministry of Health and Welfare, State of Mexico
(see Exhibits No …, …); Ms. Leslie Taylor, Intercon Medical Consultants Inc., a Texas
Corporation; Mr. Paul Parshall and Mr. Lindsy Semple representing Silverton Corp., a Utah
Corporation, and USA and Canadian investment group (see Exhibits No …, No …, No …);
prof. Vladimir Bakhutashvili, Institute of Medical Biotechnology, Georgian Academy of
Science, Tbilisi (see Exhibit No …); Prof. Dr. Maurice Moncany, Ph.D., Sc.D., 18 Allce des
Orgues de Flandre, Paris (see Exhibit No …); Dr. Nery Flores Sandoval, M.D. and Mr. H.M.
Crawford representing Aero Exem International, Inc., an investment group located in
Houston, Texas, USA (see Exhibit No …); Mr. John Kotowski, “John Kotowski and
Associates Inc.”, of Canada acting on behalf of Novopharm Inc.; Mr. Tite Ramazievich
Chumburidze, Vice President of the limited liability company “Mimi”, a private marketing
and distribution concern acting in concert with agencies and instrumentalities of the

87
 Republic of Georgia and Dr. Veselinka Djordjevic, Ph.D.Sc., ICN Galenika, Belgrade,
Yugoslavia, a subsidiary of ICN Pharmaceuticals, Inc. (USA).

I. Consolidation Bulgarian Activities

263.On or about 1 May, 1993, after 18 months [see before § …(from 31 October, 1991)] of
operations in the Republic of Bulgaria, the Applicant, in consultation and with the
agreement of offices, directors, shareholders and trustees of LCP and LCI, commenced to
undertake the necessary steps to amalgamate commercially viable products identified by
the clinical drug development and marketing activities of LCPBJV with the financial
services and customer products of NATO into a single corporate body “LifeChoice
International AD” (hereinafter “LCIAD”), to be formed under the Bulgarian Law on
Commerce as promulgated in 1991 and set down in State Gazette (hereinafter “SG”) No 48
and as later amended and set down in SG No 25 of 1992 and later again in Nos 61 and 103
as later promulgated in 1993.

264.Applicant and in house legal counsel Attorney Bogdanova [see before § 38] agreed to act as
incorporators (”subscribers”) of the new firm, as trustees on behalf of LCI and to this effect
did severally execute declarations of trust (see Exhibit No … and No …) wherein they did
each declare that the moneys paid in by them as formation capital and costs and as may be
paidin by them, from time to time, jointly or severally, have in fact been furnished by LCI
and that any shares allocated or issued from the treasury of LCIAD to them as a
consequence thereof are for the account and benefit of and subject to the order and control
of LCI and its successor and assigns.

265.On 17 May, 1993 Applicant and Attorney Bogdanova, (hereinafter “the

Incorporators”(”subscribers”)) of LCIAD called a meeting (see Exhibit No …). In attendance
were NATO office manager Ms. Ada Zheleva Gogova and account/bookkeeper Ms. Maya
Petrova Galeva, [see before § …] the Incorporators decided, inter alia, LCIAD be formed as
a “public company” or “AD”19; the registered and records office to be at the offices of NATO
and LCPBJV, 96-A “Rakovski” Blvd in Sofia; that the startup capital of LCIAD be 1,000,000
[undenominated, old] Bulgarian leva divided among 10,000 named common shares as
setout in Section II, Article 6 of the Articles of Association which reads:

“II. CAPITAL

6. CAPITAL

6.1. The capital of the Company amounts to 1 000 000 (one million)
leva.
6.2 The capital is divided into 10 000 shares with value of 100
leva each.

7. The incorporators [subscribers] register shares in the capital of the

Company as follows:
19
“Aktsionerno Drouzestvo” or “AD”, being an incorporated body unlimited as to the number of shares or
shareholders except by the amount of equity capital contributed, as represented thereby and the stock certificates of
which are printed in bearer form, the printing regulated by law, as opposed to a “Private Limited Company” or
“Drouzestvo s ogranichena otgovornost” or “OOD” where public solicitation of share subscription is to all practical
purposes inhibited according to shareholder rights and obligations that are equivalent to that of a general partner and
not limited to only the market value of the issued shares or breakup value of the incorporated body (“AD”), assets
less liabilities.

88
 Milka Petkova Bogdanova – 2 500 shares
Michael Kapoustin – 7 500 shares”

That the formation costs and startup capital had been paid up in full by the Incorporators
and funds were available to the firm; the Articles of Association so submitted were
acceptable (see Exhibit No …); a 3 (three) member Board of Directors be constituted
consisting of Ms. Gogova, Ms. Geleva and the Applicant (see Exhibit No …) with the
Incorporators directing the said 3-member Board to do all things necessary and undertake
such acts as are lawful to effect the registration of LCIAD and commencement of its
commercial activities. Applicant was elected by directors Galeva and Gogova to act as
LCIAD Board of Directors’ executive member (see Exhibit No …) and therefore the only
person authorized to represent or bind the said corporation, the Board of Directors having
so declared by Petition to the Sofia City Court (see Exhibit No …)

266.In June 1993 the newly appointed LCIAD Board of Directors requested the Sofia City Court
enact a ruling, inter alia, registering LCIAD and entering it into the Commercial Register of
Sofia; a public filing of board members’ declarations and rulings to that effect; accept the
Articles of Association as filed; file the declarations of the incorporators; record the minutes
of the first general meeting of shareholders; list the Board of Directors membership; verify
paidin cash capital; accept the Applicant’s specimen signature as the only authorized
member of the board of LCIAD recognized to conduct company business, as setout in
Article … of the Memorandum of Association which reads: “….”.

267.On 17 June, 1993 the Sofia City Court, by decision No 15249 in Register No 10, item
009997 of Vol. No 144, page 006 of the Commercial Register, did record the incorporation
of LCIAD (see Exhibit No …) with the Applicant as registered holder of 7,500 of the 10,000
common shares so authorized and issued, Attorney Bogdanova holding the balance of
2,500, the cumulative number of their holding representing 100% ownership of LCIAD as
held by them, jointly and severally, in trust [see before § 45] to the account and for the
benefit of LCI and subject to its order and control.

268.At all times during the period in question the aforesaid documents, decisions and
declarations were a part of the public record available at any and all times to private
citizens, officials, agencies and instrumentalities of the Government.

J. Non – Cash Contributions

269.Applicant and other LCIAD members agreed to acquire all tangible and intangible21 20

assets of LCPBJV, NATO and other firms or individuals (see Exhibit No …) in and outside
Bulgaria, with LCIAD providing to said non-cash 22 subscribers an allocation of its
common shares to be issued at their nominal value of 100 [undenominated, old]
20
Assets which have material form and therefore can be turned into cash fairly quickly, e.g. securities, cash, cheques,
etc.
21
Assets which are valuable in helping the business, but since they have no material form, are not easily turned into
cash, e.g. goodwill, patents, copyrights, trademarks.
22
Non-cash contributions and the resulting increase in corporate capital on account thereof are regulated and
effected only by resolution(s) passed by the Incorporators or later by a majority of the shareholders (membership) as
decisions taken at general meeting(s) as convened.

89
 Bulgarian leva, this subsequent to completion of all such non-cash acquisitions, inter
alia, of rights to trademarks, patents, distribution agreements, licenses, proprietary
processes and products; goodwill; leasehold improvements; office equipment; inventories
of goods; professional consultations and services that had been agreed to by the Board of
Directors and as must subsequently be approved by the Incorporators at a General
Meeting announced publicly by notice in the State Gazette at least 30 days prior to any
such increase of share equity identifying each beneficiary of any shares to be later issued,
the nominal value and kind of share so allocated, the total number required to complete
the acquisition and the nature of the non-cash contribution for which the shares are so
exchanged. According to domestic law [see below § …] a corporation (AD) can increase
capital only after a non-cash or cash contribution having been transferred or paidin to the
said corporation and made available to it. Whereupon the capital increase so affected
must be recognized by the Sofia City Court and recorded in the Commercial Register [see
below § …]. According to domestic law [see below § …] shareholder rights and privileges
do not and cannot enure to any subscriber for corporate (AD) shares [see below § …] until
such time as the printing of share (stock) certificate had been approved by the Ministry of
Finance [see below § …] and Interim Certificate [see below § …] that had been issued in
lieu thereof exchanged, whereupon the corporation (AD) as required by law, is only then
to admit the holder thereto as a member (shareholder).

K. Cash Contributions

270.On October 31st, 1993, by way of a public offering embodied in a prospectus23 of even date
(see Exhibit No …) LCIAD did undertake to further increase its capital by cash
subscriptions for its common shares as offered by it to the public at the nominal value of
100 [undenominated old] and a market premium per share of 50 [undenominated old]
Bulgarian leva, the offering being for 1,000,000 shares at 150 [undenominated old]
Bulgarian leva per share.

271.Cash realized from the public offering was to be allocated to operating costs and the
clinical drug development of Factor-R [see before § …]. A significant component of the
financing was to provide credit facilities24 to licenses and distributors during clinical trials.

272.Applicant, although not required by law, nonetheless, did submit the LCIAD prospectus
and business plan to officials of the Ministry of Finance for their consideration prior to
effecting a public offering of the securities described therein, Applicant having done so in
good faith and in accordance with a practice and habit common to such undertakings in
Canada and the United States.

23
During the period in question domestic law did not regulate the ways and means for a public offering, distribution
and over the counter (“OTC”) trading of corporate (“AD”) shares or other securities [see below § …]. Prospectus or
other offering contents and representations were at that time a self-regulated function and responsibility of
promoters [see below § …], Board of Directors, Management and employees, each bearing joint and several liability
for material representations set down in the prospectus or any offering memorandum or as personally represented by
them. Under the prevailing law at the time no Government or private independent authority had embodied in it a
mandate to vet, pass upon, regulate or otherwise approve a public offering of shares or securities beyond the
requirement to record, in the Commercial Register of the District, any increase in shares or capital and to gain
approval by the Ministry of Finance for the printing of same. Alternatively, it can be said, that there existed nothing
under domestic law prohibiting the soliciting of public investment in corporate (AD) shares or other securities, their
distribution or trading, and no demands of full and plain disclosure placed upon promoters or dealers in such
securities beyond those limited requirements found in the Law on Commerce. In the absence of such demands under
law LCIAD directors elected to be guided by the minimum requirements of Canadian securities law.
24
Under the terms of … the … September 1993 agreement with Silverton.

90
273.On or about July 1993, subsequent to its receipt of an LCIAD due diligence package [see
before § 62] Ministry of Finance officials called the Applicant who, with Mr. Ivo Borislavov
Parushev [see before § …] attended a meeting where ministry officials advised LCIAD that
no facility existed to accommodate the voluntary documental filings and other disclosures
of LCIAD since no securities act [see below § …] or other law was in place, under
consideration or even, at that time, being formulated.

274.LCIAD disclosed in its submissions to the Ministry of Finance and in its offering and forms
that:

[Offering Cover Page]

“These securities have not been approved or disapproved by any

exchange or regulatory body which has passed upon the accuracy of this
prospectus.”

“Certain risk factors (see “Risk Factors”) are inherent in an investment of

this nature … the information contained herein may be subject to
amendment … cancellation, in whole or part …[SIC]”

[Offering Page 13]

“Issuance of Shares”

“Currently Bulgarian law does not permit a public corporation to

undertake the printing and distribution of shares until it has received the
consent, in writing, of the Ministry of Finance (the "Ministry") as set out in
Instruction No3 of the Ministry of Finance on the printing of bonds, shares
and other securities. The consent of the Ministry is obtained after the
submission of a written request by the Company that shall include the
name of the issuer, its address, the volume and par (nominal) value of the
shares to be printed (issued). The Company intends to submit such
application at the conclusion of this offering.

Until such time as the written consent of the Ministry is obtained the
Company shall issue, within 30 days of the conclusion of this Offer, an
Interim Share Certificate, the "Certificate", in compliance with Section II
Article 167 of the Act, shall evidence the kind and number of shares
purchased by the Subscriber. The Certificate may then be redeemed for
the Shares represented.”

And in the Subscription Agreement (see Exhibits No …, No …) the subscriber for

shares is cautioned that:

“4. Other various parties will be offered share subscriptions at various

prices ,,, until the shares are actually issued, you shall not be a
member of the Company, entitled to shareholders’ rights as set out in
the Company Act (“Company Act”) [Law on Commerce], and without
limitation you shall not be entitled to pre-emptive rights as set out in
the Company Act. [Law on Commerce]”

(Bold, underline and [ ] Applicant’s)

275.On August 1st, 1993, prior to the aforesaid public offering, it was disclosed
that:

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[Offering Page 13]

“Description of Share Capital”

On June 4th, 1993 the "Company" filed its original Prospectus under
Article 169 of the Trade Act ( "Law on Commerce" ) the "Act", with fully
paid up capital of 1,000,000 BGL ( $37,706 USD ) comprising the initial
capitalization of 10,000 Common Shares at 100 BGL ( $3.77 USD )
nominal value each. This capital is in compliance with Section I Article 161
(2) wherein a public company may, if formed without subscription,
incorporate with a minimum of 1,000,000 BGL capital. The Prospectus
and other Company documents were registered with the Sofia City Court;
Company Registration Section, Sredetz Municipality (the "Court") and may
be inspected there or at the offices of the Company by appointment. On
July 17th, 1993 the Company received the decision of the Court
evidencing its incorporation.

At an extraordinary meeting [see Exhibit No …] of the Directors, Officers

and Shareholders of the "Company" on the 1st of August 1993 a motion
was put forward and subsequently passed authorizing the increase of
capital to 100,000,000 common shares at 100 BGL or USD $ 3.77 par
(nominal) value per share in accordance with Section V Article 192 (2)(4) of
the Act. These new shares would be sold by Prospectus through the
Company's facilities by subscription at the nominal value to insiders of the
Company and at a premium of 50 BGL per share, totalling 150 BGL or
USD $ 5.00, to the general public. As of the date of the this Prospectus
and prior to the offering 2,239,100 shares are issued and outstanding. No
fractional Common Share shall be issued nor consideration given in lieu
thereof.”

(Bold, underline and [ ] Applicant’s)

The 2,239,100 shares issued and outstanding were identified in the offering:

276.On 31 December, 1993 by way of a Share Purchase Option and Subscription Agreement
(see Exhibit No …) LCI agreed to acquire all outstanding unsubscribed new shares of LCIAD
on the condition that not more than 20,000,000 common shares be authorized; LCI be
addressed not more than 100 [undenominated, old] Bulgarian leva per share; any LCI
contributions of cash, goods, services or equipment to LCIAD, or others on its behalf, be
acquired towards those shares ordered by it; LCIAD permit LCI to effect payment from time
to time in installments25 but fully paid up by 31 December, 1995.

277.On 26 August, 1994 at a General Meeting of Shareholders (incorporators) (see Exhibit No

…) only 20,000,000 of the 100,000,000 common shares authorized by the Board of
Directors on 1 August, 1993 [see before § …] were approved for distribution and reported as
subscribed for to the Sofia City Court on 30 September, 1994 (see Exhibit No …).

278.Cash and non-cash subscribers were issued Interim Certificates [see below § …] in the
styles evidenced by Exhibits No …, No …, No …., upon which were recorded the
25
According to the Bulgarian Law On Commerce share capital may be subscribed for in full but paid off in
installment [see below § …].

92
 subscribers’ name, address, number of shares allocated and the nominal value thereof.
Interim Certificates so issued could only to be exchanged for shares subsequent to those
approvals [see before § …] required by law, whereby and on account thereof up to and
including the present the authorized common shares represented by the 10,000 named
shares26 [see before § …] of the Applicant and Attorney Bogdanova, continue to represent
the present and full control over LCIAD and its assets together with the total patrimony
thereof.

279.The Interim Certificates [see before § …] thus provided subscribers which evidence the
allocation of the aforesaid capital carry no rights or privileges of membership (voting) or
beneficial interest in corporate activity (dividends) or assets, on account of Law [see after §
…] they bear no legal right beyond that of conversion to the common shares evidenced by
them and that only subsequent to compliance with the prevailing rules of Ministry of
Finance directives [see before § … and after …]. Any privilege or benefit, such as the
distribution of earnings [see below § …] or pre-emptive rights equal to that of a full member
(shareholder) of the Issuer is solely dependent upon the largesse of the controlling
shareholders, but is in no way incumbent upon them or LCIAD.

280.On …, 1997 the Supreme Court, Civil College the Republic of Bulgaria
rendered a decision upon the specific matter of subscriber rights as evidenced
by the aforestated Interim Certificates, that decision reads: “…”

281.Delivery of shares as allocated and evidenced by the said Interim Certificates could only
be effected once all offers for new share subscriptions were closed and then only after,
inter alia, determining the value in the aggregate of all cash and non-cash contributions
to LCIAD capital as calculated in Bulgaria [undenominated old] leva; the total number
and kind(s) of new shares to be authorized; the holding of general meeting of the
shareholders to resolve to increase the capital by an amount sufficient to accommodate all
subscriptions; the SOFIA City Court approving and registering the capital increase and
finally the approval of the Ministry of Finance, the Republic of Bulgaria, to print the
shares required and to insert thereupon the name of each subscriber, the number and
kind of each share in compliance with Article … of the Articles of Association [see before §
…].

282.On 31 December, 1995 LCIAD had effected all but the last requirement of the law as set
out in Instruction No 3 of the Ministry of Finance (particulars – S.G., etc…) which reads:
“…” and as amended by the Council of Ministers on November 30th, 1994 under
Enactment No 289 of Instructions For the Conditions and Order for Ruling and Control
Over Securities, which reads:

“Article 5. Permission for printing of a security is given by the Finance

Minister or by a person authorized by him.”

I. Preliminary Statement
26
LCIAD received Court approval to increase its capital to 20,000,000 shares on 16 June, 1995 [see below § …],
LCIAD management was intent on submitting a request to the Ministry of Finance to approve the printing of stock
certificates [see § …] subsequent to investors completing an exchange of LCI Depositary Receipts [see below § …,
§ …] for shares of LCIAD as allocated to them under the LCI, BANQ1 depositary receipt offering [see below § …]
thus permitting the stock certificate to be “named” in compliance with Article 14.2 and 14.3 of the Memorandum of
Association [see before § …]. The … October 1995 seizure of documents [see below § …] from the offices of
LCIAD by the Government made impossible the issuance of the stock and dilution of assets to subscribers.

93
283.The Applicant states the following upon personal knowledge as to himself and his acts and
as to all others upon his best information and belief that the claims asserted establish
Convention violations arising from, inter alia, the unlawful arrest, detention and
extradition of the Applicant by agencies of Interpol, Federal Democratic Republic of
Germany on account of known to the Government of the High Contracting Party, Republic
of Bulgaria (hereinafter “the Government”) to be false and misleading material claims
made upon unverified and untrue information; the failure to bring the Applicant promptly
before a judge or court of law; denying the Applicant the right to challenge the lawfulness of
his arrest and detention; an unreasonable period of detention prior to trial and the refusal
by Government arresting authorities and the Court to explain to the Applicant the charges
against him and the reason for his arrest and on going detention of 5 years pending trial; a
repeated denial to the Applicant of an effective remedy to Appeal the abuses setout herein
before a national authority; the unlawful seizure of Applicant property and other assets by
the Government; production of false evidence and witnesses by officials of the Government
who did distribute and cause the public distribution and publication of slanderous remarks
embodied in official correspondence and reports protected under law; impugning the
character, integrity and honor of the Applicant with the intent to cause cruel or unusual
treatment and punishment; intimidation and harassment with intent to inflict material
harm, mental and physical suffering and emotional distress with the purpose of torturing
the Applicant into a confession..

284.The Application presents a complex factual matrix, neccessitate medii, setting out those
events leading up to and including the acts complained of and alleged to be violations of the
Convention by officials, agencies and instrumentalities of the Government.

285.The business conduct and transactions of the Applicant are the subject of
Government allegations against him and must, therefore, be examined within the
body of the Application, due consideration given to the prevailing political and
economic flux prevalent during the periods in question, events are reviewed in the
context of incessantly changing civil and penal law, commercial practices, financial
market conditions, foreign exchange and banking policies.

TO The Registrar
The European Court
European Commission of Human Rights
Council of Europe
F-67075 Strasbourg CEDEX

COMPLAINT

FROM:Michael Kapoustin – Canadian citizen,

Under custody in Sofia City Prison
13th division
21 Stoletov Str., Sofia 1309
Bulgaria

94
 AGAINST: Republic of Bulgaria for violation of Art. 6 point 1
and Art. 5 point 1 item c
and Art. 5 point 4 from the ECHFR

Your Honors,

286.I was detained upon request of Bulgaria at the Frankfurt am Mein Airport on 6 th of
February 1996 and I was later handed over to Bulgarian authorities on September 3, 1996.
The High Regional Court in Frankfurt set out in its motivations that as long as Bulgaria has
signed the ECHFR this should be enough to guarantee me a fair and unprejudiced trial.

287.This is not the reality because besides my human rights, the rules of the Bulgarian judicial
system are being violated regularly. Since I haven’t exhausted all possibilities provided in
Art. 26 of the ECHFR for the moment I will focus only on the violations, which correspond
with the requirements of the ECHFR.

288.On 30th of December 1999 a constitution of the Sofia Court of Appeal has confirmed the
refusal of the first instance court to change my measure to secure appearance “detention
under arrest”. This Ruling is signed by the judges: Anadolska, Dimitrova and Markova.

289.On a subsequent appeal, of the another decision of the lower court to change the detention
order to at least “house arrest”, the Appeal Court decision from 31st of January 2000 was
again signed by the same court’s constitution of the judges Anadolska, Doushkova and
Markova, with only a single variation of the membership. Exactly these same judges have
ruled previously on the same matter on the 6th of July 1999.

290.The so stated Ruling is illegal because of the presence of the suppositions of the Art. 25
point 1 of the Bulgarian Penal Procedure Code (BPPC), according to which a judge who has
participated already in an appeal instance hearing and has already ruled upon the judicial
control over the measure of detention in the previous pre-court hearing could not be part of
the court membership.

291.Therefore with the participation of two of the judges from the previous hearing I have been
deprived from the legal possibility my complaint against the measure of detention to be
objectively and impartially controlled.

292.This legal possibility “to appeal the measure of detention in front of Court of Appeal” is
part of my right of defense and should not be restricted, as it has been in my case.

293.The judicial act, with which the Appeal Court pronounced itself in this case could not be a
subject of further appeal, therefore it meet the requirements of art. 26 of the ECHFR.

294.During the three hearings of the Court of Appeal my wish to be personally heard and to
expose other arguments in support of my demand to change the measure of detention has
not been respected.

295.It is true, that the hypothesis of art. 348 para 1 from the BPPC provides the possibility for
the appeal instance court to decide alone if the parties in the procedure for control of the
private complaint should be summoned, but it is also true that the proceeding against
foreign citizens in a Bulgarian Court is an exception from the common rule.

95
 I have never been a Bulgarian citizen.

Therefore in this case should be applied the hypothesis of ECHFR assuring my personal
appearance in Court, constituted according the law.

296.Actually the Court of Appeal has not acted as constituted according the law, since it had
an illegal membership.

297.All the procedure of my arrest and extradition have been defective in law and if the Court
of Appeal had been fair and impartial it would find the following circumstances:

- I have never been summoned by the bodies of the preliminary procedure in Bulgaria;
- The conditions and the grounds to form and lead an investigative case against me in my
absence have never been present;
- In violation of Art. 21 from the Bulgarian Law on Advocacy I have never had legally
appointed defense counsel to represent my interests;
- The leading investigator Stefcho Georgiev has committed crimes in his official capacity
in regard to the case against me;
- In violation of the internationally accepted methods to exchange judicial papers, in my
case, has been allowed to be attached written information against me, without the
official certification of the Canadian Ministry of Justice;
- In 13 of my interrogations during the preliminary proceeding it was allowed to
participate as translator an officer of the Bulgarian Interior Ministry – Kossev. Who
participated as well in the preparation of evidences against me and in this sense is an
interested party;
- During my detention my religious rights and freedom have been violated;
- During my detention I have been maltreated and humiliated 16 times, in witness of this
statement there are publications in the Bulgarian press;
- I am illegally deprived from the right to be free.

298.Each one of the above statements is reflected in the court minutes from the court hearings
for the period December 1999 – January 2000 and is supported by evidence, which has
been collected and is available to the Bulgarian Courts.

299.Although at first glance this evidences are not adequate to the matter of this complaint,
because they concern the internal conviction of the jurists, they have their place because
they reveal procedural violations during a judicial stage preceding the court stage and the
Court has the power to rule upon them. The fact that the Appeal Instance has not
pronounced itself upon these specific violations, which exclude the application of a
measure of detention and determining its legality also lead to limitation of my rights and
lack of fair and impartial trial.

The Applicant states the following upon personal knowledge as to himself and his acts and as
to all others upon his best information and belief that the claims asserted establish Convention
violations arising from, inter alia,

300.The unlawful arrest, detention and extradition of the Applicant by agencies of Interpol on
account of known to the Government of the High Contracting Party, Republic of Bulgaria
(hereinafter “the Government”) to be false and misleading material claims made upon
unverified and untrue information;

96
301.The failure to bring the Applicant promptly before a judge or court of law; denying the
Applicant the right to challenge the lawfulness of his arrest and detention;

302.An unreasonable period of detention prior to trial and the refusal by the arresting
authorities and the Court to explain to the Applicant the charges against him and the
reason for his arrest and on going detention of 5 years pending the trial;

303.A repeated denial to the Applicant of an effective remedy to Appeal the abuses setout
herein before a national authority;

304.The unlawful seizure of Applicant property and other assets by the Government;

305.Production of false evidence and witness by officials of the Government who did distribute
and cause the public distribution and publication of slanderous remarks embodied in
official correspondence and reports protected under law;

306.Impugning the character, integrity and honor of the subject with the intent to cause cruel
or unusual treatment and punishment;

307.Intimidation and harassment with intent to inflict material harm, mental and physical
suffering and emotional distress.

308.Essential to Applicant claims is a deliberation of numerous mass media reports, official

statements and documents produced by officials, agencies and instrumentalities of the
Government which make reference to and offer conclusions about, inter alia,

1. The business of the Applicant;

2. His moral character and sexual conduct;

3. His religious and ethnic associations;

4. His alleged criminally accumulated wealth in Canada and elsewhere,

all of which are slanders and libels or misstatements and misrepresentations, each falsehood
embodied therein and elsewhere having been carefully calculated and uttered with an official
malfeasance intended to make impossible, for people of good faith and conscience, to draw a
coherent distinction between a statement of personal opinion, conjecture or generalization by
the responsible official, agency or instrumentality of the Government or an assertion by it of
fact.

309.The increase in capital as first authorized by the Board of Directors on August 1st, 1993 at
100,000,000 common shares [see before § …] and later reduced at a General Shareholder
Meeting on 26August 1994 (see Exhibits No …, No …) to only those 20,000,000 shares
actually subscribed for [see before § …] as reported on 30 September, 1994 to the Sofia City
Court (see Exhibit No …) and as recorded upon the Commercial Register by the Court on 16
June, 1995 (see Exhibit No …) remain to date unissued to their subscribers and a part of
the treasury of LCIAD.

97
Ringheizen

310.On 15 May 2000 in reply to a petition and Convention complaint to the Minister of Justice
by the Defendant, the Honourable Mr. Simeonov qualified, inter alia, that a more than 5
year investigative proceeding against me is reasonable; the 4 year 8 month remand in
arrest qualifiable, citing on behalf of the Government EC case law in Ringheisen v, Austria
and B. v. Austria as referenced in Defendant's list of authorities. The Government feebly
[слабо, неенергично] attempted to find EC case law precedent for what is to any objective
observer a judicial process gone afoul [объркан, уплетен] of the operative principle in the
"reasonableness" of this Defendant's remand "pending trial" by the first instance court in
the Government's criminal proceedings against him.

311.This Court on 22 May 2000 denied me remand under house arrest qualified by Article 151,
CCP in conjunction with my request under Article 152 (b) CCP. In principle the position of
the Government as expressed in the 15 May letter, inter alia, that 4 years 8 months in
remand is not unreasonable; it fell within ECHR standards and European practice and was
therefore not a violation of my rights. The Court failed to cite specific Convention case law
to motivate its reasoning.

312.During the 22 May hearing the Defendant invoked before this court his right of habeas
corpus as embodied in domestic law in Articles 15 CCP and enshrined in Convention
Article 5 (4), the Defendant challenging, inter alia, his arrest's procedural lawfulness; the
representation of police investigators and prosecutor; the validity and veracity of facts set
down in the 27 November 1995 and 13 February 1996 "orders of detention" [arrest]
concurrent with those representations made on 16 February 1996 to the FDRG in the
Government's extradition request as submitted under Article 12 (2)a ECE; Defendant finally
pleading to Your Honours to closely examine the conduct of arresting investigator Georgiev
and the factually and legal qualification of the new charges brought on 14 January 2000.

…[sic]

313.It is now prudent to examine closely the EC judgements of Ringheisen v.Austria and B. v.
Austria as referenced in this Defendant's list of authorities.

314.It is incumbent upon me to address the argument brought on the 15 May 2000 by Minister
of Justice - Simeonov as to the period of my detention and length of this proceeding. The
Minister and then later on 22 May this Court have considered a 4 year 10 month remand in
arrest pending trial "reasonable" on account of this Convention case law.

315.For the Record Ringheisen v. Austria judgement of 16 July 1971 is reported in Series A No
13 and B. v. Austria judgement of 28 March 1990 reported in Series A No 175.

316.The Government and this Court content that my detention is reasonable and grounded in
European Court of Human Rights (EC) Case Law. To support this position the Minister of
Justice on 15 May and Her Honour Mitkova on 22 May motivated the European standard
of "reasonableness" by citing the previously mentioned Ringheisen v. Austria and B. v.
Austria case law.

317.Argument grounded upon these Convention judgements is poorly founded and factually
self defeating in that neither case is circumstantially or materially similar to that of this
Defendant and in both instances the EC ruled against Austria under the relevant
Convention Articles.

318.A review of this case law is in order on the grounds that, inter alia,

98
319.Minister of Justice and this Court content that Ringheisen v. Austria proves that a case
can proceed beyond 5 years under European logic and that a detention in arrest during
that period, as the period itself, is not unreasonable.

320.The Defendant in the alternative has repeatedly insisted that his 4 year and now 10 month
remand in arrest to secure appearance at first instance court hearings is unreasonable.
This position is in fact supported in the Ringheisen v. Austria judgement.

321.For the record it should be noted that Mr. Ringheisen was remanded in arrest on 5 August
1963 and released on 23 December 1963. A period of approximately 3 months.

322.This Defendant has been in remand under arrest since 7 February 1996 never having been
released at any time during these 4 years and 10 months of investigation. The Court should
refer to §§ 57, 58 of the Ringheisen judgement.

323.For the record I make specific reference only to the period of initial detention in custody.

324.The re-arrest of Mr. Ringheisen on 15 March 1965, please see § 61 of the judgement, was
on account that the accused Mr. Ringheisen in that case was suspected of a new and
further criminal activity while at liberty.

325.It can therefore be reasonably adduced [привеждам, изтъквам; давам доказателства,

причини] form the circumstances that Mr. Ringheisen was "released pending trial" in
conformity with Convention Article 5 § 3 on 23 December 1963. After 3 months in arrest.
His later re-arrest on attempting a new crime having weight against his later requests for
release. This circumstance can not be applied to the case currently before the court in that
the Government and this Court have refused to release this Defendant for 4 years and 10
months and I am not suspected of attempting any new crimes.

326.Finally it must further be clarified that Ringheisen was tried and convicted on 14 January
1966 only 3 years and 3 months from the date he was first charged on 5 August 1963,
please see § 67 of the Ringheisen judgement.
The current proceedings have continued 4 years and 10 months. The Government's attempt
to make analogous the 5 years of Ringheisen's various appeals to higher courts subsequent
to his conviction in 1966 as justifying the length of this proceeding is to any objective
observer without merit. My rights to appeal this court's final decisions remain in the years
ahead. The record should note that in the third year of his process, 1966, Mr. Ringheisen
was convicted. I alternatively must still, much to the disappointment of the Government be
presumed innocent. Mr. Ringheisen prolonged detention was on account of a conviction,
not as my instance to secure appearance.

327.It is again important to pay special attention to § 70 subpara 2 of the Ringheisen

judgement. Mr. Ringheisen was at liberty during the proceedings against him from 23
December 1963 to 15 March 1965 and his conviction came on 14 January 1966.

328.Mr. Ringheisen enjoyed his freedom until he had apparently abused that privilege on the
15 March nearly 2 years after being released on his first request. After which he had a
conviction and other outstanding charges ostensibly [доколкото се вижда; повидимому;
уж, привидно] obstructing his release.

329.There is no materially similar circumstance with this present case.

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330.Finally even Mr. Ringheisen's detention was ended in the two proceedings against him,
respectively on 15th and 20th March 1967, see §§ 61, 63, 76, 77 and 100 of the EC
judgement on Ringheisen.

331.If this court were to reflect upon the facts, Mr. Ringheisen's total time in remand under
arrest, even with an outstanding conviction and appeal, it would recognize remand lasted
only 3 months at first and later 2 years in the second instance [случай - задържане]. A
total of 2 years and 3 months during hearings which lasted in excess of 5 years.

332.This Defendant's 4 years and 10 months remand is apparently justifiable on account of a

Convention case where the Defendant, Ringheisen, was effectively at liberty throughout
most of the procedure. I fail to see the relationship between my own and Mr. Ringheisen
who was mostly at liberty.

333.The court should take note of the Ringheisen v. Austria final judgement. The EC found in
it the remand in arrest of Mr. Ringheisen of less than 2 years was unreasonable and
constituted a breach of Article 5 (3) of the Convention. The Court asking itself how,
according to its case law, will the EC react to this Defendant's 4 years and 10 months?

334.The case of B. v. Austria cited by Government is similarly not reasonable for the Court or
Government to apply in that again the circumstances are materially dissimilar from those
of the present case before you.

335.In the first and most obvious instance the period inferred by the Government as being
"reasonable" in the B. v. Austria case is inclusive of all procedures including appeals and
final decisions of the Supreme Court of Austria. The 5 years in the case of B.'s appeals
cannot be made analogous to the nearly 5 years of remand in arrest only for investigative
purposes and determining of a final charge and sentence by a first instance court.

336.Mr. "B." was remanded in arrest on 1 July 1980 and his last request for release was made
on 15 April 1981. "B" made no further requests to be release at all until 19 May 1985. The
Court should refer to §§ 20 - 23 of the "B." judgement.

337.Frankly, the Defendant fails in the case as cited by the Government to see the
circumstantial relationship in the instance of "B" v. Austria and the present case of the
Defendant who has repeatedly requested and repeatedly been denied these 4 years and 10
months his liberty pending a final judgement.

338.More disturbing is the apparent selective logic in attempting to create an analogy at all. It
should be noted that, as in Ringheisen v. Austria, Mr. "B" when finally appealing his
detention on 19 May 1985 was granted his request. And this even subsequent to "B.'s"
previous conviction and earlier sentencing by a lower court on 16 November 1982.

339.Also, as in the Ringheisen case, Mr. B., see § 20 of the B. v. Austria judgement, had been
previously charged, as well as convicted, on similar charges, the earlier offences causing his
remand in arrest on a second and separate accusation after having been released on a first
accusation. This fact stands as testimony "that in both cases the Austrian courts gave the
accused the right to liberty pending trial", the fact that both Ringheisen and Mr. B. chose to
abuse that right after they were released pending trial mitigates the Austrian courts need
for a lengthy detention.

340.This Defendant, inter alia, has neither a previous conviction; nor has attempted "new
crimes"; or previously absconded or attempted to abscond in violation of any lawful order of
any court or judicial authority recognized as such by the Convention. This Court and the

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 Sofia Appeal Court's motives have operated on an ungrounded supposition that the
Defendant might abscond.

341.Yet even Mr. B., twice convicted, was nonetheless on 17 July 1985 released, see § 23 of the
"B." judgement. As well for the record it should be noted Mr. B. was convicted, in the first
instance on 16 November 1982, 1 year and 4 months after his arrest. The period in prison
following a first instance court conviction can not be made analogous to the length of
detention prior to such conviction, I request the court to see § 35 of the judgement B. v.
Austria and also as additional authority the Wemhoff judgement of 27 June 1968, Series A
No 7, pp 23 - 24, §9, also Ciulla judgement of 22 February 1989, Series A No 148 p. 16 §
38.

342.Clearly the causes of Mr. B. and Ringheisen prolonged detentions in arrest are a direct
consequence of their respective convictions and appeals.

343.To make them analogous to this proceeding and its present length is materially flawed
[погрешно, невалидно, недействително]. 4 years and 10 months without a fixed final
charge and conviction is not supported by the EC and any claim it is so is without
substance or merit .

344.The very Convention case law the Government and this Court make reference defies this
court's claims and prove that the present remand as being absolutely unreasonable.

345.In B. v. Austria, see § 39, subparagraphs 3 and 4, the Court wrote "that the cause of the
continuation of the Applicant's detention on remand lay in the conviction which was
pronounced at the same time. If there had been no conviction, the accused would have to be
released immediately. (please see also the Van Droogenbroeck judgement, series A No 50 p.
20 § 38).

346.Moreover, given the essential link between para 3 and subpara 1 (c) of Article 5 of the
Convention, a person convicted at the first instance and detained pending appeal by him
cannot be considered to be [any longer] detained "for the purpose of bringing him before a
competent legal authority or reasonable suspicion of having committed an offence" in respect
of the offence of which he has been convicted".

347.In that this Defendant has not yet been convicted by any court, and his detention in arrest
is only to insure his appearance before this court, the case of Mr. B.'s detention in arrest is
only to insure my appearance before this court, the case of Mr. B.'s detention and lengthy
process cannot act as a case precedent analogous to the current circumstances where the
condition of Article 5 para (3) and 1 abstract (c) ara prevalent and still in force.

348.The Government and this court repeatedly make reference to length of the investigation in
the context of a case's complexity. The case of Mr. B. is used by the Government to justify
the 4 years and 10 months of these proceedings and this Defendant remand in arrest
throughout the period.

349.Yet in the case of Mr. B., see § 45 of the EC judgement, subpara 2 the investigation lasted
and I quote "nearly one year". It might be better said, when examined against the 4 years
and 10 months to investigate my case that Mr. B. investigation "only lasted one year". As
well the presiding judge in that case had made international inquiries by letter rogatory. As
Defendant in this case I would accept such delays had this court honoured defence
requests to make such international enquiries. This court repeatedly refused to do so.
Therefore complexity of the case cannot be considered a reasoned argument since there are
not, nor have been for years, any outstanding investigative actions under way by the

101
 prosecution or this court. In fact according to Government representation on 16 February
1996 the investigation was complete and accusation factually grounded.

350.Contrary to this court's logic and the Government's, it can not be reasonably qualified that
the EC case law grants an unlimited right of detention on account of "complexity of a case"
or to maintain remand in arrest pending judicial enquiries.

351.In fact for this court and the Government to cite B. v. Austria as to reasonableness as to
length of process is self-defeating since the EC ruled that there in fact had been a violation
of Convention Article 6 § 1 specifically on account of the length, 5 years of the proceedings
up to and including the decision of the Austrian Supreme Court, see Mr. B. judgement §§
53, 54 and 55.

352.Upon the very cases chosen by Government to cite it can be concluded that:

In Ringheisen v. Austria the EC found the period of detention of Mr.

Ringheisen unreasonable and in violation of Convention Article 5 § (3) up
to the time of his release on 20 March 1967. A total period of remand
equal to 2 years and 3 months.

And

In Mr. B. v. Austria the EC held the period of the proceedings, including

trial up to and including all appeals was unreasonable and in violation of
Convention Article 6 § 1 on account of the 5 years in total.

353.Nowhere in the case law cited did the EC find as reasonable the respective periods in
question. It therefore holds that the 4 years and 10 months of my remand in arrest to
appear before you has become unreasonable according to the very case law the Government
and this court have relied upon.

354.More importantly, in both instances, the accused's periods of remand in the above cited
Convention cases, prior to their first instance conclusions are exceeded by several degrees
of magnitude in this current case. Neither Ringheisen nor Mr. B. remained in arrest
awaiting a verdict by the first instance court more than 2 years. It stands to reason,
therefore, that the present detention has long been very unreasonable indeed as I am 4
years and 10 months awaiting a final verdict.

355.Upon the merits of the aforestated, the Government cited case law I again challenge my
continued detention is unreasonable and so have now invoked my right to habeas corpus
as enshrined under Article 5 § 4 of the Convention which reads:

"Everyone who is deprived of his liberty by arrest or detention shall be

entitled to take proceedings by which the lawfulness of his detention
shall be decided speedily by a court and his release ordered if the
detention is unlawful."

356.In invoking this right I request strict adherence by this court when issuing its decision to
the procedure embodied in Article 148 para (1) item 6, PPC which reads:

"The decision which determines the type of measure to secure

appearance shall indicate: … the reasons for the determined measure
to secure appearance"
"В акта, с който се определя мярката за неотклонение, се

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 посочват: … мотивите за определената мярка."

And para (2) which reads:

"(2) the decision shall be preferred to the accused, who shall

undertake an obligation not to change his address without notifying in
writing about his new address"
"(2) (Доп. - ДВ, бр. 64 от 1997 г., изм., бр. 70 от 1999 г.) Актът се
предявява на обвиняемия, който се задължава да не променя
местоживеенето си, без да уведоми писмено съответния орган
за новия си адрес."

357.I place before Your Honours the specific request that should this court find against me in
this instance, as it has in past decisions, that Your Honours motivate the grounds as to
why remand in house arrest under Article 151, PPC, which is the causus of this request is
not suitable for this Defendant but is suitable in much heavier crimes as evidenced by
numerous precedents for other foreign nationals accused of, inter alia, murder,
extradition, drug smuggling and racketeering.

Relevant law

A. International

1. EUROPEAN CONVENTION ON EXTRADITION ( Paris, 13 December 1957) (ECE)

Article 12
The Request and Supporting Documents

1. The request shall be in writing and shall be communicated through the diplomatic channel.
Other means of communication may be arranged by direct agreement between two or more
Parties.
2. The request shall be supported by:
(a) the original or an authenticated copy of the conviction and sentence or detention order
immediately enforceable or of the warrant of arrest or other order having the same effect and
issued in accordance with the procedure laid down in the law of the requesting Party;
(b) a statement of the offences for which extradition is requested. The time and place of their
commission, their legal descriptions and a reference to the relevant legal provisions shall be set
out as accurately as possible; and
(c) a copy of the relevant enactments or, where this is not possible, a statement of the relevant
law and as accurate a description as possible of the person claimed, together with any other
information which will help to establish his identity and nationality.

Article 14
Rule of Speciality
1. A person who has been extradited shall not be proceeded against, sentenced or detained
with a view to the carrying out of a sentence or detention order for any offence committed prior
to his surrender other than that for which he was extradited, nor shall he be for any other
reason restricted in his personal freedom, except in the following cases;
(a) When the Party which surrendered him consents. A request for consent shall be submitted,
accompanied by the documents mentioned in Article 12 and a legal record of any statement
made by the extradited person in respect of the offence concerned. Consent shall be given
when the offence for which it is requested is itself subject to extradition in accordance with the
provisions of this Convention;

103
(b) when that person, having had an opportunity to leave the territory of the Party to which he
has been surrendered, has not done so within 45 days of his final discharge, or has returned to
that territory after leaving it.
2. The requesting Party may, however, take any measures necessary to remove the person from
its territory, or any measures necessary under its law, including proceedings by default, to
prevent any legal effects of lapse of time.
3. When the description of the offence charged is altered in the course of proceedings, the
extradited person shall only be proceeded against or sentenced in so far as the offence under
its new description is shown by its constituent elements to be an offence which would allow
extradition.

Article 16
Provisional Arrest

1. In case of urgency the competent authorities of the requesting Party may request the
provisional arrest of the person sought. The competent authorities of the requested Party shall
decide the matter in accordance with its law.

2. EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND

FUNDAMENTAL FREEDOMS, Rome 4 November 1950

Article 5 – Right to liberty and security

1. Everyone has the right to liberty and security of person. No one shall be deprived of his
liberty save in the following cases and in accordance with a procedure prescribed by law:
a) the lawful detention of a person after conviction by a competent court;
b) the lawful arrest or detention of a person for non-compliance with the lawful order
of a court or in order to secure the fulfilment of any obligation prescribed by law;
c) the lawful arrest or detention of a person effected for the purpose of bringing
him before the competent legal authority on reasonable suspicion of having
committed an offence or when it is reasonably considered necessary to prevent
his committing an offence or fleeing after having done so;
d) the detention of a minor by lawful order for the purpose of educational
supervision or his lawful detention for the purpose of bringing him before the
competent legal authority;
e) the lawful detention of persons for the prevention of the spreading of infectious
diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
f) the lawful arrest or detention of a person to prevent his effecting an
unauthorised entry into the country or of a person against whom action is being
taken with a view to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he

understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this
article shall be brought promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a reasonable time or to release
pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings by which the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.

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5. Everyone who has been the victim of arrest or detention in contravention of the provisions
of this article shall have an enforceable right to compensation.

Article 6 – Right to a fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against
him, everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law. …[sic].

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty
according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

f) to be informed promptly, in a language which he understands and in detail, of the

nature and cause of the accusation against him;
g) to have adequate time and facilities for the preparation of his defence;
h) to defend himself in person or through legal assistance of his own choosing or, if he
has not sufficient means to pay for legal assistance, to be given it free when the
interests of justice so require;
i) to examine or have examined witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as witnesses
against him;
j) to have the free assistance of an interpreter if he cannot understand or speak the
language used in court.

Article 7 – No punishment without law

1. No one shall be held guilty of any criminal offence on account of any act or omission which
did not constitute a criminal offence under national or international law at the time when it
was committed. Nor shall a heavier penalty be imposed than the one that was applicable at
the time the criminal offence was committed.

2. This article shall not prejudice the trial and punishment of any person for any act or
omission which, at the time when it was committed, was criminal according to the general
principles of law recognised by civilised nations.

B. Canadian

1. Mutual Legal Assistance In Criminal Matters Act

6. (1) Where …… the Minister of Foreign Affairs may, with the

arrangement of the Minister, enter into an administrative
agreement with that other state providing for legal assistance…

(3) An administrative arrangement entered into under subsection

(1) or (2) may be implemented by the Minister pursuant to this
Act, in the same manner as a treaty.

(6) In any legal or other proceeding, an administrative

arrangement entered into under subsection (1) or (2) and
purporting to be signed … by a person designated by the

105
 Minister of Foreign Affairs is admissible in evidence … proof
that it is what it purports to be.

7. (2) Where a request is presented to the Minister by a foreign state or

a Canadian authority, the Minister shall deal with the request in
accordance with the relevant treaty and this Act.

17. No record or thing seized that has been ordered under Section 15
to be sent to the foreign state mentioned in subsection 11 (1) shall
be so sent until the Minister is satisfied that the foreign state has
agreed to comply with any terms and conditions imposed in respect
of the sending abroad of the record or thing.

17. (1) Where the Minister approves a request of a foreign state to

obtain, by means of an order of a judge, evidence regarding an
offence with respect to which the foreign state has jurisdiction
…

(2) The competent authority who is provided the documents or

information shall apply ex parte for an order for the
gathering of evidence to a judge of the province in which the
competent authority believes all or part of the evidence may
be found.

18. (1) A judge to whom an application is made under subsection 17

(2) may make an order for the gathering of evidence, where
he is satisfied that there are reasonable grounds to believe
that

a) an offence has been committed…;

b) evidence …may reveal the whereabouts of a person who is

suspected …in Canada.

(2) An order made under subsection (1) must provide for the
manner in which the evidence is to be obtained …and may

b) order a person named therein to make a copy of a record

or to make a record from data and to produce the copy
or record to the person designated …[sic]

2. The Canadian Charter of Rights and Freedoms:

12. “Any person charged with an offence has the right:

e) To be informed without unreasonable delay of the specific
offence;
f) … [sic]
g) …[sic]
h) to be presumed innocent until proven guilty according to
law in a fair and public hearing by an independent and
impartial tribunal;
… [sic].
13. Everyone has the right not to be subjected to any cruel and
unusual punishment.

106
 8. Everyone has the right to … [sic] … security of person and the
right not to be deprived thereof except in accordance with the
principles of fundamental justice.
10. Everyone has the right not to be arbitrarily detained or
imprisoned.

3. Laws promulgated under the Privacy Act [R.S.B.C. 1996] Chapter 165,
Section 15(h), s. 30 and s. 28 with s.22

16. (1) The head of a public body may refuse to disclose information
to an applicant if the disclosure could reasonably be expected to:
b) … [sic]
i) …[sic]
j) deprive a person of the right to a fair or impartial
adjudication.

31. The head of a public body must protect personal information by

making reasonable security arrangements against such risks as
unauthorized access, collection, use, disclosure [public] or
disposal.

29. If an individual’s [Applicant] personal information will be used by a

public body to make a decision that directly affects the individual, the
public body must make every reasonable effort to ensure that the
information is accurate and complete.

23. (1) The head of a public body must refuse to disclose information to
an applicant if the disclosure would be an unreasonable invasion of a
third party'’ personal privacy.

(2) In determining under subsection (1) or (3) whether a disclosure of

personal information constitutes an unreasonable invasion of a third
party’s [Applicant] personal privacy, the head of a public body must
consider all the relevant circumstances, including whether
b) … [sic]
i) … sic]
j) the third party will be exposed unfairly to financial or other harm
k) … [sic]
l) the personal information is likely to be inaccurate or unreliable, and
m) the disclosure may unfairly damage the reputation of any person
referred to in the record registered by the Applicant.

(3) A disclosure of personal information is presumed to be

unreasonable invasion of a third party’s [Applicant] person privacy if
c) … [sic]
d) the personal information was compiled and is identifiable as a part of
an investigation into a possible violation of law, except to the extent
that disclosure is necessary to prosecute the violation or to continue
the investigation,
j) …[sic]

107
 k) the personal information consists of personal recommendations or
evaluations, character references or evaluations about the third party
[Applicant]
l) … [sic]
m) the personal information indicates the third party’s racial or ethnic
origin, sexual orientation or religious or political beliefs or association,
or

4. The Privacy Act [R.S.C. 1985] section 8 (1)

9. (1) Personal information under the control of a government institution shall not,
without consent of the individual to whom it relates, be disclosed by the
institution in accordance with this section.

(2) Subject to any other Act of Parliament, personal

information under the control of a government institution may be
disclosed
b) … [sic]
g) …[sic]
h) under an agreement or arrangement between the
Government of Canada or an institution thereof and …
the Government of a foreign state, an international
organization of states or an international organization
established by the governments of states, or any
institution of any such government or organization, for the
purpose of administering or enforcing any law or
carrying out a lawful investigation

C. Bulgarian (National) Law

1. LAW ON ADVOCACY [Zakon za advokaturata]

Article 21 (1) The ruling of the court to order an official client is announced before the
Attorney College, which appoints an attorney to take up the defence.
(2) The attorney is obliged to appear as fiduciary or defence counsel when he
is officially appointed by the court or the bodies of preliminary investigation.

2. CRIMINAL CODE (CC) [Penal Code (PC), Nakazatelen Kodeks (NK)] (S.G. 89/15
November 1974)

General Part
Chapter Two - Offence (Crime)
Section IV - Numerous Offences (Crimes)

Article 26 (1) The regulations under Articles 23-25 shall not be applied in cases of continuos
crime [prodaljavano prestuplenie] - when two or more deeds which represent separately one or
different corpus delicti [sasatv] of one and the same crime, have been committed within not
continuous periods of time, under one and the same setting (background) and at uniformity of
guilt, at that the following ones (deeds - M.) appear from objective and subjective part (point of
view) a continuation of the previous ones.

108
 (2) When a continuous crime is present the perpetrator shall be punished in conformity
with the constituent deeds in their aggregate and their common offensive (criminal) result
caused.

(3) When the separate deeds represent different corpus delicti [sastavi] the continuous
crime shall be punished for the heavier (graver) one, taking into account the importance of the
deeds, committed under qualifying circumstances [kvalifitsirasti obstoyatelstva] and not the
qualifying circumstances themselves for the whole offensive (criminal) activity.

(4) When the qualifying circumstances do not influence considerably (do not have
considerable impact upon) the gravity of the whole offensive (criminal) activity, the latter shall
be prosecuted for the lighter corpus delicti and the qualifying circumstances shall be taken
into account when determining the punishment.

(5) (New - S.G. 28/1982) When some of the deeds are completed and others represent an
attempt and the completed deeds do not influence considerably the whole offensive (criminal)
activity, the perpetrator shall be punished for an attempt.

(6) (Former para 5 - S.G. 28/1982, add. S.G. 10/1993, alt. 50/1995) The regulations under
this Article shall not be applied to offences (crimes) against the person (personality) of different
citizens and for offences (crimes) committed after presentation (bringing up) [prediaviavane] of
the accusation.

[Article 26 (Alt. - S.G. 62/1997) - The regulations under Articles 23-25 shall not be applied for
offences (crimes) representing dangerous persistent (repeated) offence [opasen retsidiv]. The
punishments for these offences are to be served separately.]

Chapter Four - Punishment

Section I - General Principles
Article 37 (1) Punishments are as follows:
1. … [sic]…
2. …[sic]
6. depriving of the right to obtain certain state or social position;
7. depriving of the right to exert certain profession or activity;
8. depriving of the right to reside at a certain place (city, town, village - my remark - M.)
[naseleno miasto]
9. … [sic] … 11.

Chapter 11 - Additional ruling

Article 93 The words set down below are used in this code in the following sense:
1. "An official" is a person who is entitled to execute against or without payment
temporarily or permanently:
a) … [sic]
b) managing job or job connected with safekeeping or administering of other
people's property in a state enterprise, co-operation, public organisation, other
juristic person or for a [ednolichen targovets]. [(add. 1997) managing job ….
ednolichen targovets as well as of a private notary and assistant-notary.]
2. …[sic]
3. …
7. "Heavy crime" is the one punishable by imprisonment of more than five years,
imprisonment for life or death punishment according to law.

109
 8. "Especially grave case" is the one when the crime committed, in view of the harmful
consequences taken place and other aggravating circumstances, reveals extremely
high degree of social danger of the deed and the perpetrator.
9. …[sic]
13. international defence is applicable to persons for whom such a defence is provided
for by an international treaty to which the Republic of Bulgaria is a party.
14. … [sic]

Special Part

Chapter 5 - Crimes (offences) against Property

Section III - Misappropriations (Prisvoyavania)

Article 20127 (Add. - S.G. 28/1982, alt. S.G. 10/1993. Add. S.G.50/1995; Decision of the
Constitutional Court No 19/1995, S.G. 97/1995) An official [public servant] who
misappropriates [prisvoi] other people's money [private funds], belongings or other valuables,
handed in to him in his official capacity [his capacity as public servant] and entrusted to him
to keep secure and administer them shall be punished for embezzlement [dlajnistno
prisvoyavane] by imprisonment up to eight years and the court may rule confiscation
[konfiskatsia] of the guilty person's property up to half of it [edna vtora] and to deprive him
from rights under Article 37, items 6 and 7.

Article 202 (1) For embezzlement [dlajnostno prisvoyavane] the pinishment is imprisonment
from one to ten years:
1. if for its facilitating another crime has been committed as well for which law does
not provide for a heavier punishment;
2. if it has been committed by two or more persons in scienter.

Article 203 (1) (Alt. - S.G. 89/1986) For embezzlement [dlujnostno prisvoyavane] of especially
large scale, consisting an especially aggravated case [osobeno tejak sluchai], the punishment is
imprisonment from ten to thirty years.

(2) The court rule confiscation [konfiscacia] of the whole or part of the property of the
accused and deprives him (her) from rights under Article 37, items 6,7 and 8.

Article 206 (1) Whoever unlawfully misappropriates other people's movable belonging which
he possesses or keeps safe (secure) shall be punished for [obsebvane - in the dictionary it is
written misappropriation, embezzlement, appropriation; uzurpation, take-over - tell me which one
is appropriate here - M.)

(2). (3) … [sic]

(4) For [obsebvane] of especially large scale, representing an especially grave case, the
punishment is imprisonment from 5 to 15 years and the court rules as well deprivation of
rights under Article 37, items 6 and 7 and confiscation of part or the whole property of the
guilty person.

Section IV - Fraud

27
By a Decision of the Constitutional Court dated 12 October 1995 (S.G. 97/ 3 November 1995) the rule of § 19 of
the Law on Alteration and Addition to the Criminal Code which adds to Article 201, CC has been declared
"unconstitutional" and after the words "to keep secure and administer them" should be added "by disposing of them
in his or other people's personal interest"

110
Article 209 (1) (Alt. - S.G. 28/1982, 10/1993) Whoever, with the objective to obtain for himself
or someone else property advantage (proceeds), incites (provokes) or sustains in someone else
fallacy thus causing him or someone else property injury, shall be punished for fraud by
imprisonment not more than six years.

(2) … [sic]…
(3) …[sic]…

Article 210 (1) For fraud the punishment is imprisonment from one to eight years:
1. …[sic]
2. …[sic]
3. if the fraud was committed by an official [dlajnostno litse] or an attorney
[palnomostnik] within his competence or power of attorney;
4. … [sic]
5. if the injury caused is of an especially large scale

(2) In the instances under items 4 and 5 the court may rule confiscation not more than half
of the property of the guilty person.

Article 211 When the fraud under Article 209, para 1 and 2 and Article 210 is of especially
large scale representing an especially grave case [osobeno tejak sluchai] or dangerous repeated
crime [opasen retsidiv], the punishment is imprisonment from three to 10 years. The court may
rule confiscation not more than half of the property of the guilty person and obligatory
settlement [zaduljitelno zaselvane]

Chapter Six - Offences against Economy

Section I

Article 219 (1) (Alt. - S.G. 28/1982) If a public servant [dlujnostno litse] (official), in his
administration of assets or of money in his possession or in the execution of work which he has
been ordered to do, negligently causes considerable material damage, or the destruction or
dispersal of the assets to the disadvantage of the service concerned or the national economy,
he will be punished by a term of imprisonment of not more than three years or by forced labour
in the public interest.

(2) … [sic]…

Chapter Eight - Crimes (offences) Against the Activities of State Authorities and Social
Organisations

Section III - Crimes against Justice

Article 290 (1) Whoever, being a witness, conscientiously confirms orally or in writing untruth
or conceals truth before a court of justice or another body of authority shall be punished for
perjury by imprisonment up to five years.

(2) The same punishment shall be imposed to a translator or an interpreter [talkovnik] who,
before a court of justice or another appropriate (due) [nadlejen] body of authority, in writing or
orally, conscientiously gives untrue translation or interpretation.

Article 291 (1) Whoever, being an expert [vesto litse], gives conscientiously wrong conclusion,
orally or in writing, before a court of justice or another appropriate (due) [nadlejen] body of
authority, shall be punished by imprisonment from one to five years and deprivation of the
right under Article 37, item 7.

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 (2) If the deed under the previous paragraph has been effected incautiously, the
punishment is imprisonment up to one year or corrective (?) labour [popravitelen trud]. (Do you
have such an animal guys?- They punish you to work heavily without being paid for a certain
period of time and think that this will improve (correct) your consciousness or personality. - M.) The
court may rule deprivation of the right under Article 37, item 7 as well.

Chapter 9 - Documentary Offences

Article 313 (1) Whoever confirms untruth or conceals truth in a written declaration, which by
virtue of law, enactment or ruling of the Council of Ministers is to be submitted to a body of
authority to certify truthfulness of certain circumstances shall be punished by imprisonment
not more than three years or by a fee from 5,000 to 30,000 BGL.

(2) When the deed under para 1 has been committed with the objective to pay due taxes,
the punishment is imprisonment from one to six years and a fee from 20,000 to 250,000 BGL.
(3) …[sic]…

1. CRIMINAL PROCEDURE CODE (CPC) [Code of Criminal Procedure (CCP), Penal

Procedure Code (PPC), Nakazatelno - Procesualen Kodeks (NPK)] (S.G. 89/15 November
1974)

Part One

Chapter 4
Section I

Article 25 A judge or a juror may not be a member of the judicial panel

1. (Add. - S.G. 28/1982, alt. - S.G. 31/1990, S.G. 50/1995) who has been a member
of the judicial panel having passed a sentence or a decision in the first, second or
supervising instance when re-instituting the criminal proceedings;
2. who has conducted preliminary investigation under the case;
3. who has been a prosecutor or a social accuser under the case [(alt. - S.G., 64/1997)
- or a social accuser - deleted];
4. who has been accused, guardian or custodian of the accused, defence counsel,
social defender [(alt. - S.G., 64/1997) - social defender - deleted] or fiduciary
(attorney?) under the case;
5. who has been or may enter the criminal proceeding as a private accuser, private
complainant, civil plaintiff or civil respondent;
6. who has been a witness, expert, translator, interpreter [talkovnik] or a specialist -
technical assistant under the case;
7. who is a spouse or a close relative to the persons under items 1 - 6;
8. who is a spouse or a close relative to another member of the judicial panel;
9. who, due to other circumstances, may be considered biased or interested, directly or
indirectly in the final outcome of the case.

Chapter 7
Section I

Article 51 (1) (Add. - S.G. 31/1990) The accused has the following rights: to learn what he has
been accused of and upon what evidence; to give explanations upon the accusation, to examine
the case and make the necessary extracts (excerpts); to submit evidence; to participate in the
criminal proceedings; to make requests, notes and objections; to make last statements; to

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appeal the decisions of the court and of the preliminary proceeding bodies which infringe his
rights and legal interests and to have a defence counsel. At the accused's request the defence
counsel may attend at conducting of investigative actions.

(2) The defendant has the right for final (last) word.

Section VI

Article 70 (1) the participation of a defence counsel is obligatory when

1. the accused is a minor;

2. the accused suffers physical or mental deficiencies, which obstruct (prevent him
from) him to defend himself;
3. (Add. - S.G. 50/1995) the case is for an offence punishable by death penalty,
imprisonment for life or imprisonment for not less than 10 years;
4. the accused does not know Bulgarian language;
5. the interests of the accused persons are contradictory and one of them has a
defence counsel;
6. (new - S.G. 89/1986) when the case is tried (heard) in the absence of the defendant.

(2) In the instances under items 4 and 5 of the previous paragraph the participation of a
defence counsel is not obligatory provided the accused states he does not wish to have a
defence counsel.

(3) (Alt. - S.G. 89/1986) When the participation of a defence counsel is obligatory, the
respective authority is obliged to appoint for a defence counsel a person who practices
advocate's profession.

(4) The defence counsel appointed is removed from the penal proceeding provided the
defendant nominates another defence counsel.

Chapter 8 - EVIDENCE AND EVIDENTIAL MEANS

Section II

Article 90 (1) When the accused does not know Bulgarian language a translator (interpreter) is
to be appointed.

(2) The persons pointed out in Article 121 para (1), items 1 - 3 may not be translators.

(3) For not appearing or refusal to fulfil the task assigned to him (her) the translator is
responsible under Article 122, para (3)

(4) When the accused is deaf or dumb an interpreter [talkovnik] (Is this the right word - it is
the only option in my dictionary - M.) is to be appointed.

(5) The rules under para (2) and (3) are to be applied for interpreters [talkovnitsi] too.

Section III

Article 93 (1) Persons who have taken part in the same criminal proceeding in another
procedural capacity may not be witnesses under the case except for:

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 1. (alt. - S.G. 28/1982, S.G. 89/1986, 31/1990) the accused against whom the
proceeding has been ceased or ended by a verdict in force;
2. the private accuser, the civil plaintiff, the civil respondent;
3. [poemnite litsa- persons who attend search of premises or seizure of property of the
accused - I don't know how to translate this, could not find such a word in the
dictionary - M.]
(2) …[sic]…

Chapter 9
Section II

Article 121 (1) The following persons may not be experts:

1. the persons concerning whom the grounds under Article 25, items 1-5 and 7-9 are
present;
2. the witnesses under the case;
3. the persons being under employment or other dependence on the defendant or his
defence counsel, the private complainant, the civil plaintiff, the civil respondent or
their attorneys (fiduciaries?);
4. … [sic]..
5. the persons who do not have the necessary professional competence, if such
competence is required.

(2) In the instances under the previous paragraph the expert is obliged to withdraw himself.

(3) …[sic]…

Part Two

Chapter 10 - Measures for Procedural Coercion (Compulsion)

Article 146 Against the accused under a criminal of common (general) character case one of
the following presence securing measures [merki za neotklonenie] are to be taken:
1. signature;
2. guarantee;
3. home arrest
4. detention under custody.

Article 147 (1)The presence securing measures are taken with the objective to prevent
(frustrate) the accused from absconding, commit another offence (crime) or the frustrate
revealing of the objective truth or putting into effect (executing) of the verdict that has come
into force.

(2) When determining the presence securing measures the degree of social danger of the
offence, the evidence against the accused, his state of health, family status, profession, age and
other data concerning the accused's personality are to be taken into account.

(3) (New - S.G. 84/1994, alt. S.G. 50/1995) After taking a presence securing measure for
premeditated crimes of common (general) character punishable by imprisonment of more than
three years, the frontier check(ing) posts shall be immediately advised not to let the accused
leave the territory of the Republic of Bulgaria without the permission of the prosecutor or the
court.

Article 148 (1) In the decision determining the presence securing measure the following data is
to be stated: time and place of issuing; issuing body; the case under which it is issued; the

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three names of the accused; the offence (crime) for which the accusation has been brought up
and the motives for the determined measure.

(2) The decision is presented to the accused [(add. - S.G. 64/1997) … who is obliged not to
change his domicile without notifying in writing the respective body for his new address.]

Article 152 (1) (Alt. - S.G. 50/1995) Presence securing measure "Detention under Custody"
[zadarjane pod straja] shall be taken for a heavy premeditated crime [tejko umishleno
prestuplenie]. (Detention on remand shall be imposed if the charges concern crimes punishable
by a term of imprisonment of ten years or more or by capital punishment. - Lukaoiv.)

(2) (Alt. - S.G. 31/1990, S.G. 50/1995) In the instances under para 1 the presence securing
measure may not be taken if there is no danger for the accused to abscond, to frustrate
revealing the objective truth or to commit another crime. (The measure envisaged in the
previous paragraph shall not be imposed if there is no danger of the accused evading justice or
committing another crime. - Lukanov)

(3) (New - S.G. 50/1995) The regulation under para 2 shall not be applied when concerning
the accused there is a pending proceeding under accusation for another offence (crime) of
common character, as well as in cases of repeated crime [retsidiv]. [(alt. - S.G. 64/1997) The
presence securing measure detention under custody of the preliminary proceeding may not last
for more than one year, and if (provided) the accusation is for an offence (crime) punishable by
more than fifteen years of imprisonment, imprisonment for life or death punishment - more than
two years.]

(4) (Alt. - S.G. 39/1993, previous para 3, S.G. 50/1995) Except for the cases under para
one the presence securing measure detention under custody shall be taken for other offences
(crimes) as well punishable by imprisonment when:
1. (add. - S.G. 89/1986, alt. S.G. 31/1990, add. S.G. 50/1995) there is a
substantiated (grounded) danger for the accused to abscond, to frustrate revealing
of the objective truth or commit another offence (crime);
2. the accused does not have permanent domicile and he can not be identified.
(Item 3. Rescinded - S.G. 31/1990)

(5) (New - S.G. 31/1990, previous para 4, alt. -S.G. 50/1995) the detained person shall be
secured immediately the opportunity to appeal the presence securing measure before the
respective court. The court rules within three days from the date of filing the appeal by a
ruling, which is final. [rescinded - S.G. 64/1997) ((4) The detained person may immediately
lodge an appeal with the court against his detention. The Court shall decide within three days by
means of a decision which is final. - Lukanov)

(6) …[sic]…

Chapter 11 - Handing in of Summons (subpoenas), Notices and Papers. Terms and

Expenditures

Section I

Article 158 (1) Handing in of subpoenas, notices and papers is made by an employee at the
respective court, preliminary investigation body or people's council.

(2) When handing in can not be effected as per the previous para, it should be done
through the bodies of the Ministry of Home affairs.

(3) …[sic]

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 (4) To employees and workers handing in may be effected through the administration of the
enterprise, department or organisation where they work.

(5) … [sic] …

(6)… [sic]…
(7) to persons, departments, enterprises and organisations being abroad handing in shall
be effected according to a treaty for legal assistance with the respective country and when there
is no treaty - through the Ministry of Foreign Affairs.

(8) In urgent cases subpoenaing may be effected by a cable, by phone or other appropriate
way. [(alt. S.G. 64/1997) In urgent cases …by phone, telex, fax or by a cable. The subpoenaing
by phone and fax shall be certified in writing by the official who made it, the subpoenaing by
cable - through the notice of its delivery, and through fax - by the written OK for a message
received.]

[(9) (New S.G. 64/1997) … [sic]…]

Chapter 12
Section I

Article 171 (alt. - S.G., 39/1993) (1) Preliminary proceedings are conducted:
1. for crimes (offences) of common (general) character;
2. for crimes (offences) committed by minors or by persons having physical or psychic
deficiencies, which obstruct them from defending themselves;
3. for crimes (offences) prosecuted under a complaint from the injured person - in
cases under Article 46.
(2) Preliminary proceedings as per para 1, item 1 are not conducted under cases within the
venue of the Regional Court as first instance…[sic]…

Article 172 The preliminary proceeding bodies are the prosecutor and the preliminary
investigation authorities (bodies).

Article 173 The preliminary proceeding bodies use widely the assistance of the public for
clarifying the circumstances under the case as well as to remove the reasons and
circumstances which contributed to committing of the offence.

Article 175 (1) The preliminary proceedings is to be conducted in the investigative region
corresponding to the venue of the court competent to hear the case.

(2) The preliminary proceeding may be conducted in the region where the crime (offence) was
found out or where the domicile of the person accused of committing it is, or where the
domicile of more of the accused persons or witnesses is when:
1. the accusation is for several offences committed in the venue of different courts;
2. it is necessary to secure promptness, objectivity, comprehensiveness and
thoroughness (exhaustiveness, completeness, fullness) of investigation;

(3) The issues under the previous paragraph are to be solved by the prosecutor in whose
region the preliminary proceeding has been initiated. Until the prosecutor rules only those
investigative actions are to be conducted which must not be delayed.

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 (4) Except for the instances under para 2 by permission of the Main Public Prosecutor the
preliminary proceeding may be conducted in another investigative region in view of the full
investigation of the crime (offence).

Article 176 When exerting guidance and supervision concerning lawfulness over the activities
of the preliminary proceeding bodies the prosecutor may:

1. give them directions for the preliminary investigation;

2. demand, examine and verify all materials collected by the preliminary proceeding
bodies in connection with the offence (crime);
3. to demand the investigative case in the course of the preliminary investigation;
4. to take part in effecting the actions under the preliminary investigation;
5. to remove persons conducting preliminary investigation if they breach law or are not
able to secure rightly conducting of the investigation;
6. to seize the investigative case from one investigative body and give it to another one;
7. to rescind on his initiative or at a complaint from the interested persons the not
grounded and unlawful decisions of the preliminary investigation bodies.

Article 177 The prosecutor may conduct preliminary investigation or carry out separate
investigative actions when he finds this necessary. [in force by 11 August 1997]

(alt. - S.G. 64/1997) The prosecutor may carry out separate investigative actions after bringing
the procedure to an end by the investigator or by the assistant (deputy) investigator.

Article 178 The directions of the prosecutor to the preliminary investigation bodies, given in
writing, are obligatory except for the instances under Article 208, para (1), 219 and 220. [in
force by 11 August 1997]

(1) (Former text of Article 178, alt. - S.G. 64/1997) The directions of the …[see above]…
Article 219 and 220.

(2) (new - S.G. 64/1997) when the investigator does not agree with prosecutor's rulings
and with his written instructions (directions), the investigator may object before the
superior prosecutor.

(3) (new - S.G. 64/1997) The ruling of the superior prosecutor is obligatory for the
investigator and is not subject to objection.

Article 179 (1) The materials under the preliminary proceedings may not be made public
without prosecutor's permission.

(2) When it is necessary, the preliminary proceeding body warns against signature the
persons who attend the conducting (effecting) of the investigative actions that they may not
make public without permission the materials under the case, otherwise they will be responsible
as per Article 360 of the Criminal Code.

Article 181 The rulings (enactments) of the preliminary investigation bodies are to be appealed
before the prosecutor and the rulings (enactments) of the prosecutor - before the superior
prosecutor. [in force by 11 August 1997]

(1) (Former text of Article 181 - S.G. 64/1997) the rulings … superior prosecutor.
(2) (new - S.G. 64/1997) the ruling (enactment) of the prosecutor which determines a
presence securing measure detention under custody may be appealed only before the
respective court.

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Article 184 (1) When the preliminary proceeding bodies establish reasons and conditions
which have contributed to committing of the crime, they offer to the respective office
(department, establishment), enterprise or organisation to take measures for their removal.

(2) The office (department), enterprise or the organisation are obliged to consider the
proposal and within one month since its receipt (notification) to advise the body that made it
about the measures taken.

(3) If the managing body of the enterprise, office (department) or the organisation does not
respond in due time (within the term), the managing body of the superior organisation is to be
advised (notified).

Article 185 (1) (Add. - S.G. 28/1982) The preliminary proceeding bodies are obliged to take the
necessary measures to prevent a crime (offence) when there are grounds to suppose it will be
committed, including temporary seizure of the means by which the crime (offence) might be
committed.

(2) (new - S.G. 28/1982) by exception, when there are undoubted data that a murder or
another heavy premeditated crime might be committed, the investigative bodies, with the
approval of the prosecutor, may detain the person for no more than twenty four hours.

Section II
Instituting of Preliminary Proceedings

Article 186 (1) Preliminary proceedings are instituted when there is legal cause and adequate
(sufficient) data for a crime (offence) having been committed.

(3) Preliminary proceedings may be instituted as well when urgent investigative actions are
necessary.

Article 187 Legal causes for instituting of preliminary proceedings are:

1. reports (notifications) to the preliminary proceeding bodies about a crime
committed;
2. articles, notes and letters for a crime committed published by the press;
3. personal appearance of the perpetrator before the preliminary proceeding body
acknowledging a crime committed.
4. Direct establishing (finding out) by the preliminary proceeding body of signs of a
crime committed.

Article190 (1) There is sufficient (adequate) data for institution of a preliminary proceeding
when a grounded supposition can be made that a crime has been committed.

(2) To institute a preliminary proceeding no data is necessary to make conclusions

concerning the persons who have committed the crime or concerning the applicable penal
(criminal) law.

Article 191 (amended - S.G. 35/1990) (1) (alt. - S.G. 31/1990) When there is not enough data
for initiation of preliminary investigation and no urgent investigative actions are necessary, the
preliminary proceeding bodies, the respective bodies of the Ministry of Home Affairs
[Ministerstvo na vatreshnite raboti] and other administrative authorities in the instances
provided for by law carry out a preliminary inspection about which they advise the prosecutor.
[(alt. S.G. - 64/1997) When there is not enough data for institution of preliminary proceeding
…]

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 (2) (Alt. - S.G. 28/1982) During the preliminary inspection investigative actions are not
allowed as provided for by this code, except for inspection of the place (scene) of accident
[mestoproizshestvie] and the connected with this seizure and interrogation of eyewitnesses,
when their immediate conduct is the only possibility to collect and preserve the evidence. For
these actions the preliminary proceeding body advises immediately the prosecutor.

(3) The preliminary inspection is to be carried out in shortest possible terms.

[(3) (New - S.G. 64/1997) During the preliminary inspection the respective bodies
(authorities) of the Ministry of Home Affairs may prepare records (kinozapisi), video records,
audio records and photographs including objects marked according to Article 11 para (2) and
(3), 111a, 111b[б], 111c [в], 113 and 113a.
(4) (New - S.G. 64/1997) It is forbidden to make public the fact that conducting of
preliminary inspection is being initiated.
(5) (former para (3) - S.G. 64/1997) The preliminary inspection…]

Article 192 (1) The preliminary procedure is instituted by the prosecutor.

(2) (Alt. - S.G. 110/1993) The investigator may institute preliminary proceeding as well, for
which he immediately advises the prosecutor.

(3) (Para (3) deleted, former para 4, alt. - S.G. 31/1990. Add. S.G. 50/1995) When the
preliminary proceeding is instituted by the investigator or by his order without the conditions
provided for this, the prosecutor rescinds the enactment (ruling) and ceases the proceeding.

Article 193a (New - S.G. 89/1986) The prosecutor may divide the preliminary proceeding
under the conditions of Article 31a.

Section III Preliminary Investigation

Article 195 (Alt. - S.G. 28/1982, S.G. 89/1986; S.G. 31/1990, S.G. 110/1993) (1) Preliminary
investigation is obligatory under cases which are within the venue of a Regional Court or of the
Supreme Court as first instance, as well as for crimes (offences) under Articles 124, 131a, 134,
152, 162-167, 169, 198. 201-205, 212, 220-223, 240, 243, 282-285, 304-307, 320, 321 and
341 of the Criminal Code. [(alt. S.G. 64/1997) - Preliminary … of the District Court … Article
113a, 134, … 320 and 341 of the Penal Code.]

(2) The preliminary investigation is obligatory under case for offences committed by minors
or by persons with physical or psychic (mental) deficiencies, which obstruct them from
defending themselves, as well as under cases against foreigners.

(3) The prosecutor may order to conduct preliminary investigation under cases of other
crimes as well.
[(4) (New - S.G. 64/1997) The prosecutor or the investigator may transform the preliminary
investigation [sledstvie] into inquest [doznanie - Fanny explained to me that sledstvie -
investigation is the more complex and can be conducted for no more than two months, by
permission of the District prosecutor it can be prolonged up to 6 months and by permission of the
Main Public Prosecutor - up to 9 months; doznanie - inquest (this is the word I chose, not being
certain about right use) can be conducted within two weeks and may be prolonged up to 1 month
by permission of the prosecutor - M.], when the preliminary investigation is not obligatory under
para (1) and (2) and:
1. at reinstitution of proceedings ceased against an unknown perpetrator;
2. at dropping out of the grounds setout in the enactment (ruling) under para (3)
(5) (New - S.G. 64/1997) the investigator advises (notifies) immediately the prosecutor
when he transforms the preliminary proceeding.]

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Article 207 (1) When during (in the course of) the preliminary proceeding enough evidence is
collected for (about) the guilt of a certain person for committing an offence (crime) of common
character and some of the grounds for ending (ceasing) of the penal proceeding are not present,
the investigator drafts a ruling for prosecuting of the person [privlichane na litseto kato
obviniaem].

(2) In the ruling the following data is to be stated: date and place of issuing; issuing body;
the three names of the person prosecuted; the offence (crime) he is accused of; evidence giving
merit to the accusation provided this does not hamper the investigation and the penal law
under which the person is prosecuted.

Article 209 (1) The investigator must present [prediavi] the charge immediately after its
bringing [povdigane].

(2) When the accused does not appear without valid reasons the investigator sets down
(appoints) a new presenting of the accusation and takes measures for bringing the accused by
force.

(3) When the accused appears without a defence counsel, the investigator sets down a new
presentation of accusation provided participation of a defence counsel is obligatory and the
accused was not in a position to nominate one in due time.

(4) When presenting the accusation the investigator explains the accused his rights.

(5) When presenting the accusation the investigator gives the accused and his defence
counsel the opportunity to examine the full text of the ruling for prosecution and when
necessary makes additional explanations.

Article 212 When, during the preliminary investigation, grounds are found out to apply a law
for a graver (heavier) offence or a law for the same, equally or more lightly punishable offence
when there is an essential change in the circumstantial part of the accusation or new offences
or persons are to be included in the accusation, the investigator is obliged to present the
accused a new accusation (charge).

Article 213 (1) When the investigator established that all necessary investigative actions have
been conducted, he starts bringing (submitting) the investigation.

(2) (Alt. - S.G. 50/1995) To the submitting (bringing) of the investigation the accused, the
civil plaintiff and the civil respondent are to be summoned.

(3) When no defence counsel appears the investigator sets down new submitting of the
investigation, provided the participation of a defence counsel is obligatory and the accused has
not succeeded in nominating one.

(6) …[sic]…

(7) Before submitting of investigation, the investigator explains to the attending persons
their rights.

Article 217a (New - S.G. 89/1986) when this will not frustrate revealing of the objective truth,
inquiry [razsledvaneto] may be conducted in the absence of the accused under the conditions
of Article 268, para 3 and 4.

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Article 219 (1) When the investigator establishes (finds - [nameri]) that the accusation has
been proved, he drafts an accusatory conclusion [obvinitelno zaklyuchenie].

(2) In the circumstantial part [obstoyatelstvenata chast] of the accusatory conclusion are to
be set down in brief: the crime committed by the accused; the time, place and way of its
committing; the injured person and amount of injuries; data about the person of the accused;
evidence by which the circumstances, legal qualification of the deed are established; reasons
and conditions which contributed to committing of the crime.

(3) In the concluding part [zaklyuchitelnata chast] of an accusatory conclusion are set
down: prosecutor's office to which the case shall be sent, date and place of drafting of the
conclusion and the name and capacity of the person who drafts it.

(4) To the accusatory conclusion are attached: list of the persons to be subpoenaed in the
judicial sitting; reference concerning the presence securing measure in which the date of arrest
of the accused is to be pointed out provided the measure is detention under custody (remand);
a reference concerning the documents and material evidence ; …[sic]

Section V - ACTIONS OF THE PROSECUTOR AFTER ENDING OF THE PRELIMINARY

INVESTIGATION
Article 236 (1) The prosecutor send back the case for additional investigation when:
1. a law for more heavily punishable crime should be applied or a law for the same,
equal or lighter punishable crime (should be applied - M.) when there is an essential
(substantial) change (alteration) of the circumstantial part of the accusation or to
include in the accusation new crimes or new persons;
2. the investigation is not objective, comprehensive and complete [(alt S.G. 64/1997) -
the preliminary proceeding has been conducted in the absence of the accused when
his attendance is obligatory];
3. when during investigation an essential violation of procedure rules has been made
[(alt S.G. 64/1997) - the preliminary proceeding has been conducted without the
participation of a defence counsel, when defence is obligatory];
4. (New - S.G. 89/1986) the proceeding instituted for one crime, committed by more
persons should be divided [(alt. S.G. 64/1997) - no accusation has been brought
against the accused];
5. [(New - S.G. 64/1997) - the materials under the preliminary proceedings have not
been brought (submitted) to the accused];
6. [(New - S.G. 64/1997) - the investigation has been conducted by an incompetent
authority (body);
7. [(New - S.G. 64/1997) - the right of defence of the accused and the injured has been
violated].

(2) (amended - S.G. 99/1974) in the ruling (enactment) by which the case is sent back for
additional inquiry [razsledvane - according to me including investigation and inquest - M.] the
prosecutor points out the violations made, the circumstances which have to be clarified and
the investigative actions which have to be conducted.

(3) (Add. - S.G. 28/1982) The additional investigation is to be conducted within the term
determined by the prosecutor, but no more than two months for the investigation [sledstvie]
and two weeks for the inquest [doznanie]. When the additional investigation [sledstvie] cannot
be conducted within two months, the terms under Article 222 para (3) are to be applied.

(4) …[sic]…

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 [(5) (New - SG 64/1997) The prosecutor may not re-send back again the case for additional
inquiry [razsledvane - investigation, inquest] unless the grounds for this have appeared in the
course of the additional inquiry [razsledvane] or the instructions given have not been complied
with (implemented).]
[(6) [(New - S.G. 64/1997) except for the instances under para (1) and (4) the prosecutor
conducts the necessary investigative actions too.]

Chapter 14 - Judicial Sitting

Section I - General Terms

Article 268

(1) In cases for offences of common (general) character, the penalty for which is
imprisonment or heavier, the presence of the Defendant is obligatory. [(alt. - S.G. 64/1997)
Under cases with charges for a heavy crime (offence) the attendance of the defendant at the
judicial sitting is obligatory.]

(2) The court may order the defendant to appear as well under cases where his/her
presence is not obligatory, when it is necessary for revealing of the objective truth.

(3) Provided this does not frustrate the revealing of objective truth, the case may be tried in
the absence of the defendant who is out of the boundaries of Republic of Bulgaria,
provided: [(alt. S.G. 64/1997) - … who is out of the boundaries of the Republic of
Bulgaria - deleted]
1. (alt. S.G., 28/1982) His residence [mestojiveene - domicile] is unknown; [he has not
been found at the address given by him or has changed the latter without advising the
competent authority]
2. he cannot be summoned for other reasons; [deleted]
3. he has been duly summoned and has not advised valid reasons for his absence.
[item 2]

(4) (New – SG 89/1986) In the instances of para (1) the case may be tried in the absence of
the Defendant only provided his residence [mestojiveene - domicile] in the country is not
known and has not been found out after a searching inquiry. [rescinded S.G. 64/1997]

Chapter 22
Section VI Legal Assistance under Criminal (Penal) Cases (new S.G. 64/1997) (relevant
Articles)

Article 461 (new - S.G. 64/1997) (1) Legal assistance under criminal cases of another country
is rendered under the circumstances of an international treaty concluded, to which
Bulgaria is a party or according to the principle of reciprocity.

(2) The legal assistance constitutes of the following actions:

1. Handing in of summons and judicial papers;

2. Seizing and submitting of the objects with which the crime was committed or of the
property obtained through an offence; interrogation of an accused person, defendant
or a witness; appointing of an expertise and accepting its conclusion; conducting of
inspection, search and seizure; search and identification of persons;
3. Submitting of material evidence, information and documents;
4. Submitting information concerning convicting of the person.

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Article 462 (new - S.G. 64/1997) Legal assistance may be refused if executing of the request
might threaten sovereignty, national security, social order or other interests, protected
by law.

Article 464 (new - S.G. 64/1997) (1) The commission (porachka - order?) for legal assistance
contains data about the authority placing it; the subject and motive of the request; the
names and citizenship of the person to whom the request refers; the name and address
of the person to whom the papers are to be handed in; when necessary - the accusation
and short statement of the facts under it.

(2) The commission (order) for legal assistance is to be sent to the Ministry of Justice and
Legal Euro-integration, except in cases when an international treaty to which Bulgaria
is a party provides otherwise.

CPC S.G. 70/1999

Article 285 (1) (S.G. 70/1999) The prosecutor brings up a new charge when during the judicial
investigation he has established grounds for essential alteration of the circumstantial part of
the accusation or for applying of a law for a heavier crime.

Article 411 (1) The prosecutor examines the materials from the police proceeding, the
objections and demands of the accused (incriminated person)[ulichenia]. He rules by:
1. Bringing a charge by an act of indictment and lodges the case with the court;
2. …[sic]

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 3.

Article 439 (1) The person surrendered by another country may be tried for:
The crime it has been surrendered for except for an approval followed to sue him for another
crime as well.

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