(1) Lachezar Kolev Georgiev v (1) Regional Prosecutor's Office, Shuman, Bulgaria
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Mr Justice Jeremy Baker |
| Judgment Date | 28 February 2018 |
| Neutral Citation | [2018] EWHC 359 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case Nos CO/4047/2017, CO/4000/2017 & CO/4286/2017 |
| Date | 28 February 2018 |
[2018] EWHC 359 (Admin)
Lord Justice Hickinbottom
and
Mr Justice Jeremy Baker
Case Nos CO/4047/2017, CO/4000/2017 & CO/4286/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mark Summers QC and Myles Grandison (instructed by JD Spicer Zeb) for the First Appellant
Mark Summers QC, Florence Iveson and Saoirse Townshend (instructed by JD Spicer Zeb) for the Second Appellant
Mark Summers QC and David Williams (instructed by Bullivant Law) for the Third Appellant
Joel Smith and Julia Farrant (instructed by Crown Prosecution Service Extradition Unit) for the Respondents
Hearing date: 20 February 2018
Judgment Approved
Introduction
The Appellants have each been convicted of various crimes, and been sentenced to a term of imprisonment, in Bulgaria. The relevant Bulgarian judicial authorities have issued a European Arrest Warrant (“EAW”) in respect of each Appellant, and are seeking their extradition to serve those sentences. The magistrates' court has ordered their extradition, and they now appeal against that decision.
It is uncontroversial that those held in Bulgarian prisons are generally at risk of being subjected to inhuman or degrading treatment contrary to article 3 of the European Convention on Human Rights (“the ECHR”) as a result of prison conditions there. However, in respect of the Appellants, the Bulgarian authorities have given specific assurances as to the treatment they would be accorded if they were surrendered, which will ensure that they will not be subjected to any treatment that breaches article 3. The Appellants, however, contend that we cannot be satisfied that the assurances will be fulfilled; and, because the Bulgarian authorities have had a reasonable time to satisfy this court that, should they be extradited there, there is no real risk of such treatment, this court should allow their appeals and order their discharge.
Before us, Mark Summers QC appeared for the Appellants, leading Myles Grandison, Florence Iveson, Saoirse Townshend, David Williams, all of Counsel. Joel Smith and Julia Farrant, both of Counsel, appeared for the Respondents. At the outset, I thank them all for their contribution.
The Law
The extradition of persons to another Member State of the European Union is governed by the Council Framework Decision of 13 June 2002 (“the Framework Decision”), which has the status of a Directive.
Both the United Kingdom and Bulgaria are parties to the ECHR and Member States of the European Union. Article 3 of the ECHR provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 4 of the Charter of Fundamental Human Rights of the European Union (“the Charter”) is in materially the same terms. Where they are implementing EU law, as they are in the case of decisions taken by the relevant judicial authorities when applying the Framework Decision, both provisions are binding on Member States. Thus, by section 21(1) and (2) of the Extradition Act 2003 (which implements the Framework Decision), where the extradition of a convicted person is sought, the court is required to decide whether his extradition would be compatible with ECHR rights and, if it decides that it is not, the court must generally order the person's discharge.
Given that the materially identical terms of article 3 of the ECHR and article 4 of the Charter each apply to both the United Kingdom and Bulgaria, and both apply to all relevant extradition decisions, in this judgment I shall simply focus on the former, unless the context otherwise requires. References to “article 3” are to article 3 of the ECHR.
The application of article 3 in this context has been considered in a number of cases to which we were referred, notably BB v Secretary of State for the Home Department (2006) (5 December 2006) (Appeal No SC/39/2005), Saadi v Italy (Application No 37201/06) (2009) 49 EHRR 30, Othman v United Kingdom (Application No 8139/09) (2012) 55 EHRR 1, Elashmawy v Court of Brescia, Italy [2015] EWHC 28 (Admin), Criminal proceedings against Aranyosi and Caldararu (Case Nos C-404/15 and C-659/15PPU) [2016] QB 921 (“ Aranyosi”), and The Court in Mures and the Bistrita-Nasaud Tribunal, Romania v Zagrean; Sunca v Iasi Court of Law, Romania [2016] EWHC 2786 (Admin) (“ Zagrean”).
For the purposes of these appeals, it is unnecessary either to drill down into these authorities or to quote from them at length. The following principles deriving from them are well-established and uncontroversial.
i) Article 3 (as reflected in section 21 of the 2003 Act) makes it unlawful for the United Kingdom to extradite an individual to a country where he is at real risk of being subjected to inhuman or degrading treatment.
ii) In the prison context, treatment will offend article 3 if the suffering or humiliation involved goes beyond the suffering and humiliation inherent in imprisonment as a legitimate punishment. For these purposes, the conditions of incarceration have to be looked at as a whole; but detention for more than a few days in space measuring less than 3m 2 is, in itself, likely to be a contravention – sometimes spoken of in terms of a strong presumption – as is a lack of proper toilet facilities that (e.g.) regularly requires the use of a bucket in a multi-occupant locked cell.
iii) The initial burden is upon the requested person to establish, by clear and cogent evidence, that there are substantial grounds for believing that he would, if surrendered, face a real risk of being subjected to inhuman or degrading treatment in the receiving country.
iv) If such grounds are established, then the legal burden shifts to the requesting state, which is required to show that there is no real risk of a violation: as it has been said, the burden upon the requesting state is “to discount the existence of a real risk” ( Aranyosi at [103]) or “to dispel any doubts about it” ( Saadi at [129]). Requiring a party to dispel any doubts as to a particular risk undoubtedly imposes a very heavy burden, although I am unconvinced that it is necessary or appropriate to put it formally in terms of the criminal standard of proof.
v) The requesting state might satisfy that burden by evidence that general prison conditions are in fact article 3-compliant. However, even where it cannot show that, that does not result in a refusal to surrender, because the assessment of whether there will be a breach of human rights is necessarily fact-specific. Therefore, where the court finds that there is a real risk of inhuman or degrading treatment by virtue of general prison conditions, it must then go on to assess whether there is a real risk that the particular individual will be exposed to such a risk.
vi) Given the importance of extraditing persons who face criminal charges or sentence in another jurisdiction and the principle of mutual respect, that fact-specific exercise requires the court to make requests of the requesting judicial authority under article 15(2) of the Framework Decision for information concerning the conditions in which the individual will be held that it considers necessary for the assessment of that risk, including information as to the existence of procedures for monitoring detention conditions.
vii) The information provided may include assurances from the requesting contracting state, designed to provide a sufficient guarantee that the person concerned will be protected from treatment that would breach article 3. In the evaluation of such assurances, relevant factors include the nature of the relationship between the requesting and requested judicial authorities and the states of which they are a part, the human rights situation in that other jurisdiction, the subject matter of the assurance and the nature of the risk involved. It also has to be conducted in the light of the principle of mutual recognition and trust between those authorities and states: where the requesting state is a signatory to the ECHR and a Member State of the European Union, there is a strong presumption that it is willing and able to fulfil its human rights obligations and any assurances given in support of those obligations. An assurance given by such a state must be accepted unless there is cogent reason to disbelieve it will not be fulfilled.
viii) In particular, assurances have to be evaluated against four conditions (identified by Mitting J in BB at [5], and approved in Zagrean at [52] as being consistent with Strasbourg jurisprudence in the form of Othman) which must generally be satisfied if the court is to rely upon them, namely:
“(i) the terms of assurances must be such that, if they are fulfilled, the person returned will not be subjected to treatment contrary to article 3;
(ii) the assurances must be given in good faith;
(iii) there must be a sound objective basis for believing that the assurances will be fulfilled;
(iv) fulfilment of the assurances must be capable of being verified.”
I shall refer to these as “the Zagrean criteria”.
ix) Where the further information (including any assurances given) satisfy the court that, should the individual be extradited, there is no real risk of him being subjected to inhuman or degrading treatment, then the court will order his surrender. Where it is not satisfied, generally, the individual will still not be discharged: the execution of the EAW and extradition will be postponed until the requesting state is able to satisfy the court that the risk can be...
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