Richard Chechev v The Prosecutor's Office in Kardzhali, Bulgaria
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay,Lord Justice Singh |
| Judgment Date | 26 February 2021 |
| Neutral Citation | [2021] EWHC 427 (Admin) |
| Date | 26 February 2021 |
| Docket Number | Case No: CO/4025/2019 & CO/3912/2019 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2021] EWHC 427 (Admin)
Lord Justice Singh
Mr Justice Jay
Case No: CO/4025/2019 & CO/3912/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Robin Tam QC and Saoirse Townshend (instructed by Lloyds PR Solicitors) for the 1 st Appellant
Robin Tam QC and Daniel Sternberg (instructed by ABV Solicitors) for the 2 nd Appellant
Helen Malcolm QC and Stuart Allen (instructed by the Crown Prosecution Service) for the Respondents
Hearing date: 10 February 2021
Approved Judgment
Introduction
These are two appeals under section 26 of the Extradition Act 2003 (“the 2003 Act”) against the decision of District Judge (“DJ”) Fanning, sitting at Westminster Magistrates' Court, dated 2 October 2019, to order the extradition of the Appellants to Bulgaria.
The cases were joined in the Magistrates' Court as they both raise an issue about prison conditions in Bulgaria and whether assurances given by the Bulgarian authorities are sufficient to allay concerns about those conditions. The main issue in these appeals is whether the return of the Appellants to Bulgaria would contravene Article 3 of the European Convention on Human Rights (“ECHR”). There are other, discrete issues in each case.
Permission to bring these appeals was granted on the papers by Steyn J on 8 January 2020.
It was common ground before us that, although the United Kingdom left the European Union on 31 January 2020 and the implementation (or transition) period ended on 31 December 2020, nothing material has changed for the purposes of these appeals.
At the hearing we had oral submissions by Mr Robin Tam QC for the Appellants and Ms Helen Malcolm QC for the Respondents. I would like to express the Court's gratitude to them and their teams for their helpful written and oral submissions.
Factual Background
The First Appellant's extradition is sought pursuant to a conviction European Arrest Warrant (“EAW”) issued by the First Respondent on 29 November 2016. It was certified by the National Crime Agency (“NCA”) on 7 December 2016. The EAW seeks the First Appellant's return to Bulgaria to serve two prison sentences, of 8 months (handed down on 20 October 2016) and 5 months and 29 days (handed down on 4 October 2016). The first offence was one of drink driving, committed on 25 November 2015, and the second was driving without a licence within one year of being sentenced for a similar offence, committed between 24 and 30 March 2016.
The Second Appellant's extradition is sought by a conviction EAW issued by the Second Respondent on 29 June 2018 and certified by the NCA on 3 July 2018. The EAW seeks the return of the Second Appellant to Bulgaria to serve two sentences, of 4 months and 17 days and 11 months respectively, imposed for the offences of theft and cigarette smuggling.
On 7 November 2018, the First Appellant was arrested on the EAW and appeared before a judge at Westminster Magistrates' Court for an initial hearing. On 15 November 2018, he did not consent to his extradition.
On 14 February 2019, the Second Appellant was arrested on the EAW. On 15 February 2019, he appeared for an initial hearing, where he did not consent to his extradition.
The cases of both Appellants were formally joined on 31 May 2019.
On 12 August 2019, the hearing before DJ Fanning took place. He gave his decision, in a detailed judgment, on 2 October 2019, the date on which he ordered the Second Appellant's extradition. The judgment was handed down in relation to the First Appellant on 9 October 2019 and his extradition ordered on that date.
The Second Appellant lodged an appeal against the decision of DJ Fanning on 8 October 2019, and the First Appellant lodged an appeal on 15 October 2019.
Permission having been granted, the appeals were listed for hearing on 5 November 2020 before Nicola Davies LJ and Fordham J. The case was adjourned with directions that further information be sought from the Judicial Authorities in Bulgaria: the questions asked by the Court were set out in an Annex to its judgment, [2020] EWHC 3115 (Admin).
Grounds of Appeal
There are six grounds of appeal, not all of which have been the subject of permission as yet. In summary they are as follows:-
Ground 1: Extradition would contravene Article 3 ECHR.
Ground 2: One of the offences relating to the Second Appellant (cigarette smuggling) is not an extradition offence and therefore the dual criminality rule is not satisfied: see section 10 of the 2003 Act.
Ground 3: Extradition would disproportionately interfere with the Article 8 ECHR rights of the Second Appellant. This ground only arises if Ground 2 and/or Ground 5 succeeds.
Ground 4: The Respondents are not Judicial Authorities. This ground has been stayed pending the decision of the Divisional Court in Aleksandrov ( CO/1965/2019).
Ground 5: The Second Appellant's extradition is an abuse of process.
Ground 6: Extradition would be incompatible with the First Appellant's Article 8 ECHR rights and therefore unlawful under section 21 of the 2003 Act.
Applications to adduce fresh evidence
The Appellants also apply for permission to adduce fresh evidence in support of Grounds 1, 5 and 6, including evidence that assurances given by the Bulgarian Authorities have been breached in a number of other cases.
The principles on the admission of fresh evidence in extradition cases are well-known and were set out by this Court (Sir Anthony May PQBD and Silber J) in Szombathely City Court and Others v Fenyvesi [2009] EWHC 231 (Admin), at paras. 2–11.
The reality of the present cases is such that this Court must grant the applications so that it can do justice in these appeals. The evidence was not available at the time of the hearing before DJ Fanning. Furthermore, it is clear that, when it adjourned these appeals on 5 November 2020, this Court considered it necessary to have up-to-date information from the Bulgarian authorities. The consequence is that, in the circumstances of these particular cases, the Court is not confined to asking itself whether the decision of the District Judge was wrong. We must decide the relevant issues for ourselves in the light of all the information which we now have. It follows that it is unnecessary to delve into some of the particular criticisms which have been made of DJ Fanning's judgment (at great length in the Appellants' skeleton argument).
The decision of this Court dated 5 November 2020
When this Court (Nicola Davies LJ and Fordham J) adjourned the substantive hearing of these appeals, it did so because it required current information as to the prisons in which each Appellant is to be held and the conditions therein. As a result the Court determined to seek such information and specific assurances from the Bulgarian authorities so as to be in a position to promptly determine the appeals on ground 1: see para. 11 of the judgment. The information and specific assurances sought were set out in the Annex to the judgment. It is unnecessary for present purposes to set out the Annex here because the relevant parts appear from the information which was subsequently provided by the Bulgarian authorities in respect of each of the two Appellants.
The information provided by the Bulgarian authorities
The following information has been provided by the Bulgarian authorities since the decision of the Court on 5 November 2020.
In a letter dated 20 November 2020 they said:
“In case that the permanent address of the person Richard Emilov Chechev is on the territory of the town of Kardzhali, district of Kardzhali according to Art. 58 of the Implementation of Penal Sanctions and Detention in Custody Act (IPSDCA) on the grounds of item 4.7 /for closed type/ and item 3.6 /for open type/ of Order No. L-919/08.03.2017 of the Chief Director of the Chief Directorate of Implementation of Penal Sanctions, he should be serving his sentence in the prison of Pazardzhik city.
With a total capacity of 348 of the Pazardzhik prison building, 270 inmates are currently accommodated, in open prison hostel ‘Pazardzhik’ with a total capacity of 64, 70 inmates are currently accommodated.
In case the permanent address of the person Rayko Borisov Vangelov is on the territory of the town of Petrich, district of Blagoevgrad according to Article 58 of the Execution of Penalties and Detention in Custody Act (ESDCA) on the grounds of item 4.2/for closed type/ and item 3.1 /for open type/ of Order No. L-919/08.03.2017 of the Chief Director of the Chief Directorate of Implementation of Penal Sanctions, he should be serving his sentence in the prison of Bobov Dol town.
With a total capacity of 549 of the Bobov Dol prison building, 277 inmates are currently accommodated, in open prison hostel ‘Samoranovo’ with a total capacity of 179, 124 inmates are currently accommodated.
In all places of imprisonment the rule of Art. 43, para 4 of the Implementation of Penal Sanctions and Detention in Custody Act (IPSDCA) new-no. 13/2017 is applied, in force since 07.02.2017/, according to which the minimum living area in the bedroom for each inmate cannot be less than 4 sq.m....
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