R Mihaylov v Regional Prosecutions Office in Burgas (Bulgaria)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Mr Justice Holgate |
| Judgment Date | 13 April 2022 |
| Neutral Citation | [2022] EWHC 908 (Admin) |
| Docket Number | Case No: CO/1141/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 908 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Coulson
Mr Justice Holgate
Case No: CO/1141/2019
and
Tim Owen QC and Florence Iveson (instructed by Tuckers Solicitors LLP) for the Appellant
James Hines QC and Stuart Allen (instructed by Crown Prosecution Services) for the Respondent
Hearing Date: 7 April 2022
Approved Judgment
Introduction
The appellant is the subject of a European Arrest Warrant (“EAW”) to which Part 1 of the Extradition Act 2003 (“the Act”) applies. Following a hearing before District Judge (MC) Ezzat (“the judge”), his extradition was ordered in March 2021. His application for permission to appeal against that decision was refused on the papers by Johnson J. Following an oral application (at which the respondent was not present), leave to appeal was granted by May J on 26 January 2022. As part of her order, a template set of questions ‘borrowed’ from another case involving extradition to Bulgaria, was put to the Bulgarian authorities.
There are two Grounds of Appeal. The first is that the Bulgarian authorities do not have effective specialty arrangements in place, contrary to s.17 of the Act. The second is that extradition presents a real risk to the appellant of a breach of Article 3 due to the conditions in Bulgarian prisons, the failure of the Bulgarian authorities to comply with assurances in other cases, and the alleged inadequacy of the assurances in the present case.
The Background Facts
The appellant was convicted of a driving offence contrary to Article 343c(2) of the Bulgarian criminal code. The date of the criminal conduct was 22 January 2017 and the location was Murgash Street in the city of Burgas. The offence was the equivalent in domestic law of driving without a licence. The appellant was sentenced to one year and six months.
The original conviction following trial is 57/16.03.2017 on GC498/2017 of the District Court in Burgas. The appellant was present for that trial, at which he was convicted and sentenced. He appealed, and also attended the appeal hearing, but he left Bulgaria – without informing the Bulgarian authorities — for the UK before the decision of the appellate court was handed down. The decision, which confirmed the decision of the District Court, is 160/17.07.2017 on AGCC 6194/2017 of the Provincial Court in Burgas. It took effect on 17 July 2017.
The appellant has not been convicted of any offence in the UK. He has, however, committed criminal offences in Bulgaria and has previously spent ten years in Burgas prison.
The EAW was issued on 23 October 2017 and certified on 27 October 2017 by the National Crime Agency as a warrant to which Part 1 of the Act applies. The appellant was arrested in Skegness on 25 April 2020.
The initial hearing took place at Westminster Magistrates Court on 27 April 2020. Consent was put and refused so the extradition hearing was opened and adjourned. The appellant's case was subsequently joined with three others involving Bulgarian nationals so that the s.17 and Article 3 issues could be considered together. The substantive hearing took place over two days, on 9 November 2020 and 20 January 2021. Judgment was handed down by the judge on 20 March 2021. Thereafter, as I have said, an application for permission to appeal was refused on papers but allowed following an oral hearing.
There have been a number of assurances provided by the Bulgarian authorities in this case. The assurance before the judge was dated 26 May 2020. The most recent is dated 22 March 2022, and it addresses the questions that were asked as part of May J's order granting permission to appeal. The assurance of 22 March 2022 is examined in greater detail below.
The Judge's Judgment
The judge identified the evidence called at the hearing. This included oral evidence from the appellant. The judge found at [13] that the appellant was a fugitive. The judge also received written and oral evidence from Mrs Mandzhukova-Stoyanova, a practising lawyer in Bulgaria (“the expert”). There was other evidence relating to other individuals as well, which I address in greater detail below.
In his judgment, the judge dealt with the arrangements in Bulgaria as to specialty at [17]–[24]. He summarised the relevant evidence, including the evidence of the expert, and concluded that the principle of specialty existed in Bulgaria and that, although some lawyers and officials are unaware of its proper use and application, once the matter had been raised, it was generally dealt with appropriately. Accordingly the judge found that the challenge on the ground of specialty failed.
As to Article 3, the judge addressed that challenge at [25]–[27]. He referred to the assurance of 26 May 2020 which had been provided by the respondent, which set out the conditions in which the appellant would be detained. The judge found that the assurance specifically addressed Article 3 compliance and that, on the basis of the assurance offered, the appellant would be detained in Article 3 compliant conditions. He concluded that the assurances could be relied on and that, in those circumstances, the Article 3 claim failed.
There were a number of other issues which the judge had to address but which do not arise on this appeal.
Statutory Framework
Section 17 of the Act deals with specialty 1. It provides:
“ 17 Speciality
(1) A person's extradition to a category 1 territory is barred by reason of speciality if (and only if) there are no speciality arrangements with the category 1 territory.
(2) There are speciality arrangements with a category 1 territory if, under the law of that territory or arrangements made between it and the United Kingdom, a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if—
(a) the offence is one falling within subsection (3), or
(b) the condition in subsection (4) is satisfied.
(3) The offences are—
(a) the offence in respect of which the person is extradited;
(b) an extradition offence disclosed by the same facts as that offence;
(c) an extradition offence in respect of which the appropriate judge gives his consent under section 55 to the person being dealt with;
(d) an offence which is not punishable with imprisonment or another form of detention;
(e) an offence in respect of which the person will not be detained in connection with his trial, sentence or appeal;
(f) an offence in respect of which the person waives the right that he would have (but for this paragraph) not to be dealt with for the offence.
(4) The condition is that the person is given an opportunity to leave the category 1 territory and—
(a) he does not do so before the end of the permitted period, or
(b) if he does so before the end of the permitted period, he returns there.
(5) The permitted period is 45 days starting with the day on which the person arrives in the category 1 territory…”
Article 27 of the Council Framework Decision of 13 June 2002 provides that:
“1 Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender. 2 Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.”
Article 3 of the ECHR provides that no-one should be subjected to torture or inhumane or degrading treatment or punishment.
As to the scope of any appeal from the judge's judgment, that is set out in Section 27 of the Act as follows:
“ 27 Court's powers on appeal under section 26
(1) On an appeal under section 26 the High Court may—
(a) allow the appeal;
(b) dismiss the appeal.
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
(3) The conditions are that—
(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.
(4) The conditions are that—
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;
(c) if he had decided the question in that way, he would have been required to order the person's discharge.
(5) If the court allows the appeal it must—
(a) order the person's discharge;
(b) quash the order for his extradition.”
Ground 1: Specialty
Applicable Principles
Specialty, as set out in Article 27 of the Framework Decision, is the rule whereby a person surrendered under an EAW may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender, other than that for which he or she was surrendered. Specialty can be infringed in two ways: where the individual...
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