Asen Kotsev v The Sofia District Public Prosecutor's Office (a Bulgarian Judicial Authority)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 16 November 2018 |
| Neutral Citation | [2018] EWHC 3087 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/95/2017 |
| Date | 16 November 2018 |
[2018] EWHC 3087 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Julian Knowles
Case No: CO/95/2017
Myles Grandison (instructed by Sonn Macmillan Walker) for the Appellant
Joel Smith (instructed by CPS) for the Respondent
Hearing date: 3 October 2018
Judgment Approved
The Honourable
Introduction
This is an appeal by Asen Kotsev (‘the Appellant’) against the decision of District Judge Crane dated 9 January 2017 to order his extradition to Bulgaria pursuant to s 21(3) of the Extradition Act 2003 (‘the EA 2003’). Permission was granted by King J following an oral hearing on 23 May 2018.
The Sofia District Public Prosecutor's Office, Bulgaria (‘the Respondent’) seeks the Appellant's extradition pursuant to a European Arrest Warrant (‘EAW’) issued on 24 March 2011 and certified by the National Crime Agency on 20 April 2015. The Appellant's extradition is being sought so that he can serve four years and six months' imprisonment imposed following his conviction for two offences:
a. Causing the death of one individual and moderate injuries to two others on 21 January 1998 in Sofia through driving whilst drunk and acting negligently,
b. Possessing two TNT slabs without authorisation on 7 January 2001 in Sofia.
The Appellant was arrested on 7 October 2016 on his arrival at Gatwick Airport from Spain, where he is ordinarily resident. He was remanded in custody.
In further information dated 25 November 2016 the Bulgarian Prosecutor stated that in relation to the driving matter, on the night in question the Appellant and a number of his friends went to a nightclub in Sofia, where they all consumed alcohol. Following this:
“Around 0:00 on 21.01.1998, the Bulgarian citizen Asen Vitomirov Kotsev and his friends got on the car, which was once again personally driven by him, while Desislava Kirilova was sitting in the passenger seat, and in the back sat five more individuals, seated on metal facilities for sitting, placed along the length of the passenger compartment. While driving the automobile… Asen Vitomirov Kotsev has violated the traffic law on several occasions as he drove through red lights. When approaching the junction for the petrol station before 46 Dragan Tsankov Blvd in the City of Sofia, the Bulgarian citizen Kotsev has deviated to the right, lost control over the car, and as a result of that, a collision between the right front part of the car and a roadside metal pillar has followed. As a result of the accident, Desislava Kirilova, travelling in the passenger seat of the car, has died on the spot, and three of the remaining passengers, travelling in the car driven by Kotsev, have incurred moderate injuries.”
In respect of the second offence, the Public Prosecutor stated that the Appellant had possession of two slabs of TNT at his home on 6 January 2001 without a licence.
In English law terms, these episodes of conduct would constitute the offence of causing death by dangerous driving, contrary to s 1 of the Road Traffic Act 1988, and the offence of possession of an explosive substance without lawful authority, contrary to s 4 of the Explosive Substances Act 1883.
Box D of the EAW states:
“The sentence was decreed in absentia and the person was not summoned personally or informed in any other way of the trial. Bulgarian national legislation provides legal guarantees that under a request for a person sentenced in absentia, surrendered to the Republic of Bulgaria by another country, the criminal proceedings are renewed in regard to the offence for which extradition was allowed in case of a sentence in absentia- art. 422 (1) (6) in relation to art. 423(5) of the Criminal Procedure Code.”
In fact, as further information dated 25 November 2016 from Bulgaria made clear, there were two separate sets of proceedings in the Sofia City Court (Case No 70/1999 in relation to the driving matter and Case No 11099/2001 in relation to the TNT matter). He was sentenced to four years and six months' imprisonment for causing death by dangerous driving, and 10 months' imprisonment for the possession of TNT. The sentences were merged into one sentence of four years and six months' imprisonment by order of the Sofia City Court on 24 March 2011, this being the longer of the two sentences to which the Appellant was subject. I will return to the issue of merger later.
Proceedings before the district judge
It was common ground before the district judge that the Appellant had been tried and convicted for both offences in his absence. He submitted that his extradition was barred by s 20 of the EA 2003. That section provides that where a defendant has been convicted in his absence in circumstances where he did not deliberately absent himself from his trial, then extradition is barred unless he will be afforded a re-trial, or a review amounting to a re-trial, and that he will receive certain prescribed rights at the re-trial/review. Section 20 therefore acts as a safeguard against the injustice which might otherwise result if a defendant was returned to serve a sentence which had been imposed in his absence after a trial which he did not know was taking place and which he could not re-open. In Othman v United Kingdom, Application No 8139/09, [259], the European Court of Human Rights cited such a situation as being a rare example of a ‘flagrant denial of justice’ which would be sufficient to bar extradition under Article 6 of the Convention. See generally, Nicholls, Montgomery and Knowles, The Law of Extradition and Mutual Assistance (3 rd Edn, Oxford), 5.96 – 5.119.
Section 20 provides:
“(1) If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence.
(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21.
(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.
(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21.
(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.
(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21.
(7) If the judge decides that question in the negative he must order the person's discharge.
(8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights—
(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;
(b) the right 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.”
It is for the issuing judicial authority to prove to the criminal standard that the defendant deliberately absented himself from his trial (see Mitoi v. Government of Romania [2006] EWHC 1977 (Admin)). The leading authority on deliberate absence and the right to a re-trial is Cretu v Local Court of Suceava, Romania [2016] 1 WLR 3344. Furthermore, where the Court is not satisfied that the defendant deliberately absented himself from the trial, the burden remains on the issuing judicial authority to prove that the defendant is entitled to a retrial which complies with s 20(8) of the EA 2003.
District Judge Crane found that the Appellant had deliberately absented himself from his trial in relation to the first offence (the equivalent of causing death by dangerous driving) but not the second offence (possession of TNT). The judge reached this conclusion based on the Appellant's oral testimony. The judge summarised the Appellant's evidence on this point and found as follows (judgment, [5(d], [6] and 10):
“(d) He had attended court regarding the driving offences, save on the final occasion. When he was asked if he knew he was being tried for the driving offences, he replied, ‘Maybe I just wanted to forget’. He was aware he was tried for the TNT offences. He became aware of the sentence in Bulgaria in 2005 via his family.
6. I accept the RP's evidence. I find that he knew about the proceedings for the driving offence but chose to ignore them.
…
10. The RP was aware of the legal proceedings for the driving offence and did not attend the trial as ‘maybe I just want to forget.’ I find that he deliberately absented himself from the trial for the driving offence. However, there is no evidence that he was informed of the trial for the TNT offence and so was not deliberately absent from that trial.”
As required by s 20(5), the district judge went to consider whether the Appellant would be entitled to a retrial or (on appeal) to a review amounting to a retrial in relation to the TNT matter with the guarantees provided by s 20(8). She did not need to do so in relation to the driving matter because she had found that the Appellant had deliberately absented himself in relation to that case.
The judge found that the Appellant would have a right to a re-trial which complied with s 20(8) in relation to the TNT case. Her reasoning was as follows (judgment, [11] – [15]):
“11. The RP does not dispute that the information indicates that he has a right to a re-trial but submits that the information...
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