Metodi Kirchanov and Others v District Prosecutor's Office, Blagoevgrad, Bulgaria and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd Jones |
| Judgment Date | 12 April 2017 |
| Neutral Citation | [2017] EWHC 827 (Admin) |
| Docket Number | Case No: CO/4040/2016, CO/4048/2016, CO/4056/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 April 2017 |
[2017] EWHC 827 (Admin)
Lord Justice Lloyd Jones
and
The Honourable Mr Justice Lewis
Case No: CO/4040/2016, CO/4048/2016, CO/4056/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
David Josse Q.C. and David Williams (instructed by GT Steward Solicitors) for the first appellant
David Josse Q.C. and Malcom Hawkes (instructed by JD Spicer Zeb Solicitors) for the second appellant
David Josse Q.C. and Florence Iveson (instructed by Kayders Solicitors) for the third appellant
John Hardy Q.C. and Joel Smith instructed by the Crown Prosecution Service for the respondents
Hearing dates: 14 March 2017
Approved Judgment
This is the judgment of the court to which we have both contributed. The three appeals before the court concern the conditions in which prisoners may be held in Bulgarian Prisons following their extradition from the United Kingdom to Bulgaria pursuant to European Arrest Warrants (“EAWs”).
The surrender of Mr. Metodi Kirchanov in extradition proceedings is requested by the District Prosecutor's Office, Blagoevgrad, Bulgaria by ab EAW, to serve a 5 year sentence imposed for sexual offences. The EAW was issued on 18 December 2014 and certified by the National Crime Agency (“NCA”) 20 January 2015.
The surrender of Mr. Ivaylo Petrov is requested by the District Prosecutor's Office, Montana, Bulgaria by an EAW to serve a three year sentence imposed for two offences, one of participating in an organised criminal group and one of possession of drugs with intent to supply. The EAW was issued on 11 November 2015 and certified by the NCA on 23 November 2015.
The surrender of Mr. Stanimir Ivanov is requested by the District Prosecutor's Office, Pleven, Bulgaria by an EAW to serve a 2 year service imposed for a sexual assault. The EAW was issued on 20 April 2015 and certified by the NCA on 22 May 2015.
These three cases had been consolidated before the Westminster Magistrates' Court with those of four other persons whose extradition to Bulgaria was sought (Mr. Kosta Demirov, Mr. Ilian Dimitrov, Mr. Lachezar Georgiev and Mr. Anton Zdravkov).
On 5 August 2016 District Judge (MC) Ikram ordered the extradition to Bulgaria of all seven requested persons. In those proceedings the District Judge was referred to the judgment of this court in Vasilev v Regional Prosecutor's Office, Silestria, Bulgaria and others [2016] EWHC 1401 (Admin), Burnett LJ and Mitting J, 14 April 2016 where this court concluded that, were it not for the guarantee provided by the Bulgarian Ministry of Justice relating to the conditions in which the requested persons would be detained, neither of the appellants could have been surrendered. But for the assurances given by the Bulgarian Government the rights of the requested persons under Article 3 ECHR would have been at real risk of being breached. Had the assurance not applied to the requested persons the appeals would have been allowed and their discharge ordered. In his judgment of 5 August 2016 District Judge Ikram stated that it was accepted on behalf of Bulgaria that male prison conditions in Bulgaria crossed the Article 3 threshold, that Bulgaria did not seek in those proceedings to adduce concrete evidence that the situation had improved so as to reach an Article 3 compliant level across the prison estate and that accordingly Bulgaria acknowledged that it must offer case-specific assurances. Accordingly the Judicial Authorities sought to discharge the burden on them by way of specific assurances of Article 3 compliant treatment. District Judge Ikram was satisfied that the assurance given by the Deputy Minister of Justice dated 1 December 2015 would ensure that the requested persons would be kept in prison conditions such that there would no longer be a real risk of breach of their Article 3 rights. In this regard he noted the observation at paragraph 50 of the judgment in Vasilev that the members of this court considered it inconceivable that the appellants in that case could be housed in the near future at Sofia, Burgas or Varna Prisons. On that basis the District Judge rejected the submissions of each of the requested persons that his extradition to Bulgaria would infringe his Article 3 rights.
All seven appellants were granted to leave to appeal by Sir Stephen Silber on the ground that there is a real risk that the assurance issued by the Bulgarian Ministry of Justice will be breached resulting in an infringement of their Article 3 rights. By order dated 13 December 2016, Cranston J. ordered that the cases of these three appellants be listed to be heard together in order to deal with that issue. All three appellants submit that, following the extradition of Mr. Vasilev, it has become clear that he (and likely others) have been held in conditions of detention which breach the assurances given to the court in Vasilev. and that there is a real risk that the assurance issued by the Bulgarian Ministry of Justice will be breached resulting in an infringement of their Article 3 rights. Mr. Petrov also seeks to renew his application for permission to appeal on the following grounds:
(1) Dual Criminality (sections 10, 65, Extradition Act 2003 (“the 2003 Act”));
(2) Right to family and private life (section 21 of the 2003 Act and Article 8 ECHR).
Mr. Ivanov seeks to renew his application for permission to appeal on the following grounds:
(1) His medical condition (section 21 of the 2003 Act and Article 3 ECHR);
(2) Oppression by virtue of his physical condition (section 25 of the 2003 Act);
(3) His right to family and private life (section 21 of the 2003 Act and Article 8 ECHR).
Jurisdiction in an appeal against extradition
Section 26 of the 2003 Act provides:
“26 Appeal against extradition order
“(1) If the appropriate judge orders a person's extradition under this Part, the person may appeal to the High Court against the order.
“(2) But subsection (1) does not apply if the order is made under section 46 or 48.
“(3) An appeal under this section—
(a) may be brought on a question of law or fact, but
(b) lies only with the leave of the High Court.
“(4) Notice of application for leave to appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is 7 days starting with the day on which the order is made.
“(5) But where a person gives notice of application for leave to appeal after the end of the permitted period, the High Court must not for that reason refuse to entertain the application if the person did everything reasonably possible to ensure that the notice was given as soon as it could be given.”
Article 3 ECHR
Article 3 ECHR provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Section 21 of the 2003 Act provides in relevant part:
“21 Person unlawfully at large: human rights
“(1) If the judge is required to proceed under this section (by virtue of section 20) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c.42).
“(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.
“(3) If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued.”
There is a great deal of common ground between the parties as to the application and requirements of Article 3 ECHR in this context. It is necessary for the appellants to show strong grounds for believing that if returned, they face a real risk of being subjected to torture or inhuman or degrading treatment or punishment.
“While the Strasbourg jurisprudence does not preclude reliance on Articles other than Article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to Article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment: Soering para 91; Cruz Varas para 69; Vilvarajah para 103.” ( R (Ullah) v Special Adjudicator [2004] UKHR; [2004] 2 AC 323, per Lord Bingham at [24]
The appellants accept that the ill-treatment must attain a minimum level of severity in order to offend Article 3. They submit that the threshold for this minimum level is relative and depends on all the circumstances of the case such as duration of the treatment, its physical and mental affects and in some cases, the sex, age and state of health of the victim.
It was common ground before us that member states of the EU are presumed to fulfil their international obligations under ECHR and under the EU Charter and that such a presumption is not easily displaced.
With regard to the application of Article 3 in cases of prison conditions and overcrowding the Judicial Authorities accept the following:
(1) In Ananyev v Russia [2012] 55 EHRR 18 at [145] the Strasbourg Court considered that personal space of more than 4 square metres is considered desirable and that less than 3 square metres may be sufficient to justify a finding of a breach of Article 3.
(2) In Achmant v Greece [2012] EWHC 3470 the Divisional Court considered that “as a general rule” violations were found in cases where living space was less than 3 square metres although this was not a “bright line rule”. It was necessary to assess all conditions. (See paras [30], [35] and [36]).
(3)...
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