Metodi Kirchanov and Others v Judicial Authoritiy in Bulgaria
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd Jones,Mr Justice Lewis |
| Judgment Date | 26 July 2017 |
| Neutral Citation | [2017] EWHC 2048 (Admin) |
| Docket Number | CO/4040/2016, CO/4048/2016/CO/4056/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 July 2017 |
[2017] EWHC 2048 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Lloyd Jones
Mr Justice Lewis
CO/4040/2016, CO/4048/2016/CO/4056/2016
Mr D Josse QC and Mr D Williams (instructed by GT Stewart Solicitors) appeared on behalf of the First Appellant
Mr D Josse QC and Mr M Hawkes (instructed by JD Spicer Solicitors) appeared on behalf of the Second Appellant
Mr D Josse QC and Ms F Iveson (instructed by Kayders Solicitors) appeared on behalf of the Third Appellant
Mr J Hardy QC (instructed by Crown Prosecution Service) appeared on behalf of the Respondent
Mr Metodi Kirchanov, Mr Ivaylo Petrov and Mr Stanimir Ivanov all appeal against the order of District Judge (MC) Ikram made on 5 August 2016 ordering their extradition to Bulgaria. This matter has been before the court on three previous occasions and we refer to those judgments delivered on those earlier occasions, the 12 April 2017, 22 May 2017 and 23 June 2017, for the factual and procedural background to this case. The ground on which extradition is resisted is that it is said that the prison conditions in which they would be held in Bulgaria would infringe their rights under Article 3 of the European Convention on Human Rights and Article 4 of the EU Charter of fundamental rights.
District Judge Ikram stated that it was accepted on behalf of Bulgaria that male prison conditions crossed the Article 3 threshold, however, he was satisfied that an 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 coming to this conclusion, he was influenced by the earlier decision of this court in Vasilev v Bulgaria [2016] EWHC 1401 (Admin). However, on this appeal it has been submitted that Mr Vasilev and, in all likelihood, others have been held in conditions which breached the assurances given to the court in Vasilev and it has been submitted that there is therefore a real risk that the assurances tendered in this case will also be breached.
The legal context of this appeal is set out in detail in our judgment of 12 April 2017 which we adopt.
At the initial hearing on 14 March 2017, Mr Hardy QC for the issuing judicial authorities accepted that there had been breaches of the assurances in three cases of persons surrendered to Bulgaria and that no explanation had been provided. On that occasion, the court was satisfied that the presumption applying between EU Member States that assurances will be fulfilled had been rebutted. We noted that they had been breached in relation to three individuals, they were substantial breaches, and that there had been no satisfactory explanations. As matters stood, we could not be confident that assurances would be fulfilled. In those circumstances we considered it necessary to ask the judicial authorities for further information.
Our request is set out at paragraph 44 of the judgment of 12 April 2017:
"In those circumstances, in accordance with paragraphs 95 and 96, we consider that it is necessary to ask the Bulgarian Ministry of Justice and the issuing judicial authorities for the supplemental information referred to below. We ask the Crown Prosecution Service to transmit the request to the Bulgarian Ministry of Justice so that the Ministry in conjunction with the issuing judicial authorities can provide the supplemental information. We would respectfully ask those authorities to provide within 42 days of receipt of this request the following supplemental information:
(1) In respect of Metodi Kirchanov:
(a) In which part of which institution or institutions will Metodi Kirchanov be detained for the duration of his sentence?
(b) Will Metodi Kirchanov be accommodated in a cell which (i) provides him with 4 square metres of space at all times throughout and (ii) which contains a self-contained sanitary facility?
(c What mechanisms exist, or will be provided to monitor the conditions in which Metodi Kirchanov is detained throughout his detention?
(2) In relation to Ivalyo Petrov,
(a) In which part of which institution or institutions will Ivalyo Petrov be detained for the duration of his sentence?
(b) Will Ivalyo Petrov be accommodated in a cell which (i) provides him with 4 square metres of space at all times throughout and (ii) which contains a self-contained sanitary facility?
(c) What mechanisms exist, or will be provided to monitor the conditions in which Ivalyo Petrov is detained throughout his detention?
(3) In relation to Stanimir Ivanov,
(a) In which part of which institution or institutions will Stanimir Ivanov be detained for the duration of his sentence?
(b) Will Stanimir Ivanov be accommodated in a cell which (i) provides him with 4 square metres of space at all times throughout and (ii) which contains a self-contained sanitary facility?
(c) What mechanisms exist, or will be provided to monitor the conditions in which Stanimir Ivanov is detained throughout his detention?"
A response was received in the following terms:
'On the grounds of a letter from Mrs Hina Rai, prosecutor — specialist, Supreme Court — Great Britain, containing request for providing additional information under legal procedure EZA in front of Appellative Court, we inform you of the following:
METODI OGNIANOV KIRCHANOV should serve his imprisonment and a sentence "Deprivation of liberty" in the prison in the town of Bobov dol. The capacity of the prison and the hostel towards it allows to accommodate the person in a dormitory, ensuring him 4 square metres living area. All dormitories in the prison dispose of toilets and in the hostel toilets are located one per floor.
IVAILO MAKSIMOV PETROV should serve his imprisonment and a sentence "Deprivation of liberty" in the prison in the town of Vratsa. The capacity of the prison and the hostel towards it allows to accommodate the person in a dormitory, ensuring him 4 square metres living area. All dormitories in the prison dispose of toilets and in the hostel the toilet is mutually used.
STANIMIR GEORGIEV IVANOV should serve his imprisonment and a sentence "Deprivation of liberty" in the prison in the town of Pleven. The capacity of the prison and the hostel towards it allows to accommodate the person in a dormitory, ensuring him 4 square metres living area. All dormitories in the prison dispose of toilets.
There is no obstacle in the time of their imprisonment these people to be visited by international experts under the international contracts, ratified by the Republic of Bulgaria.
If there is no physical conditions, indicated in our national law, it is foreseen a mechanism for transfer to another prison, according to an order No 919 from 08.03.2017 of the Director General of General Directorate "Execution of sentences".'"
In our second judgment, we considered that this response was unclear. We observed that that might in part be due to translation. However, we considered it did not provide the clear and precise assurances which are required if the court was to be satisfied that there was no real risk of these appellants being subjected to inhuman or degrading treatment or punishment.
We stated in that judgment that we wished to make clear that we needed to be assured as to precisely where each of the appellants would be held at every stage throughout his detention, we needed to be assured that the appellants would not be transferred to a different prison were minimum standards were not met, we needed to be satisfied that the conditions in which each would be held would comply with the minimum international provisions as to space and as to toilet facilities and we needed to be satisfied there was an effective system of monitoring those conditions.
No further information had been received from the requesting judicial authority in Bulgaria when the matter came back before this court at a third hearing, Kirchanov 3, on 23 June 2017. After hearing argument, we granted a further adjournment at the request of the requesting judicial authority.
Two further communications have now been received from the requesting judicial authority. The first is dated 7 July 2017:
"Re: Prison conditions in Bulgaria — cases of Metodi Kirchanov, Ivaylo Petrov, Stanimir Ivanov.
Dear colleagues.
Referring to the three EAW's, issued by judicial authorities in Bulgaria for the surrender of Metodi Kirchanov, Ivaylo Petrov and Stanimir Ivanov, and the request of the UK High Court for a specific reply to the issues found to be outstanding during the appeal of their surrender procedures, please allow me to present our official answer.
Taking into account our national legislation and its general requirement to keep the inmates in a prison near to their place of permanent residence, the three persons sought on the basis of their EAW's will serve their sentences as follows:
Metodi Kirchanov, DOB 08.11.1975, will be held in Bobov Dol prison;
On question l: After his arrival Kirchanov will be initially placed in Sofia prison, during the adaptation period. Throughout this period he will be kept in accordance with the assurance provided by this letter. After the expiry of the said period in compliance with the general rule he will be placed in a prison near his permanent residence — in this case Bobov Dol prison. Even in the event of a transfer to another prison facility Kirchanov will be...
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