Todor Ivanov Atanasov v District Prosecutor's Office, Karlovo, Bulgaria
| Jurisdiction | England & Wales |
| Judge | Mr Justice Murray |
| Judgment Date | 11 January 2023 |
| Neutral Citation | [2023] EWHC 18 (Admin) |
| Docket Number | Case No: CO/4004/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2023] EWHC 18 (Admin)
THE HONOURABLE Mr Justice Murray
Case No: CO/4004/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF AN APPEAL UNDER
SECTION 26 OF THE EXTRADITION ACT 2003
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr James Stansfeld (instructed by Janes Solicitors) for the Appellant
Ms Amanda Bostock (instructed by the Crown Prosecution Service) for the Respondent
Hearing date: 6 December 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down are deemed to be 11 January 2023 at 10:30 am.
The appellant, Mr Todov Ivanov Atanasov, appeals against the extradition order made on 16 November 2021 by DJ(MC) Leong at the Westminster Magistrates' Court. Bennathan J granted permission to appeal on a single ground at a hearing on 12 July 2022 of the appellant's renewed application for permission to appeal.
The single ground of appeal is that the district judge erred in concluding that the extradition of the appellant was compatible with his and his family's rights under Article 8 of the European Convention on Human Rights (ECHR). A second ground of appeal based on Article 3 ECHR is no longer pursued in light of the Divisional Court's decision in Mihaylov v Bulgaria [2022] EWHC 908 (Admin).
Applications to adduce additional evidence
The appellant has made two applications to adduce for this appeal evidence that was not before the district judge, namely:
i) an application dated 20 June 2022 to adduce the witness statement dated 16 February 2022 of Ms Veliyana Nikolova, who is the appellant's partner and the mother of his son, who is now four years old; and
ii) an application dated 25 November 2022 to admit a further witness statement dated 25 November of Ms Nikolova, together with two exhibits.
In his order dated 12 July 2022, Bennathan J directed that the appellant's first application to adduce additional evidence be considered at this appeal hearing. In his application notice for the second application, the appellant states that further evidence of Ms Nikolova is needed to provide context for the evidence in her earlier witness statement and to exhibit important documentation.
The principles that apply to the admissibility of additional evidence on appeal in the context of extradition appeals are, unsurprisingly, similar to the principles that apply in other contexts. The principles applicable in this context were set out by the Divisional Court in Hungary v Fenyvesi [2009] EWHC 231 (Admin). That case involved an appeal by a judicial authority under section 28 of the Extradition Act 2003 against the discharge of the respondents at an extradition hearing. The court was therefore required to consider the terms of section 29 (Court's powers on appeal under section 28), which sets out conditions that must be satisfied if the court is to allow the judicial authority's appeal, including as to the availability of evidence that was not available at the extradition hearing.
In Zabolotnyi v Hungary [2021] UKSC 14, [2021] 1 WLR 2569 (SC), the Supreme Court affirmed the Fenyvesi principles at [56]–[61]. It also confirmed (if confirmation was needed) that the principles apply equally to an appeal by a requested person against an extradition order under section 26 of the Extradition Act 2003, which requires the court to consider the terms of section 27 (Court's powers on appeal under section 26), including the conditions set out there, which parallel those in section 28.
In Fenyvesi at [4], the Divisional Court described the underlying policy as “often” being that “fresh evidence may be received when it is just to do so; or perhaps when it would be unjust not to do so”. In respect of evidence “that was not available at the extradition hearing”, the Divisional Court held at [32] that a requested person must demonstrate that:
“32. … [the] evidence … either did not exist at the time of the extradition hearing, or … was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained.”
As to the general approach to be taken, the Divisional Court in Fenyvesi gave the following guidance at [34]–[35]:
“34. Section 29(4) of the Extradition Act 2003 is not expressed in terms which appear to give the court a discretion; although a degree of latitude may need to be introduced from elsewhere. As Latham LJ said in [ Miklis v Lithuania [2006] EWHC 1032 (Admin)], there may occasionally be cases where what might otherwise be a breach of the European Convention on Human Rights may be avoided by admitting fresh evidence, tendered on behalf of a defendant, which a strict application of the section would not permit. … .”
“35. Even for defendants, the court will not readily admit fresh evidence which they should have adduced before the district judge and which is tendered to try to repair holes which should have been plugged before the district judge, simply because it has a human rights label attached to it. The threshold remains high. The court must still be satisfied that the evidence would have resulted in the judge deciding the relevant question differently, so that he would not have ordered the defendant's discharge. In short, the fresh evidence must be decisive.”
I have read the additional evidence de bene esse. I will return to the appellant's applications to adduce additional evidence at the end of this judgment.
Background
The appellant's extradition is sought pursuant to an international arrest warrant issued on 7 June 2018 by the District Prosecutor's Office, Karlovo in Bulgaria. The arrest warrant was certified by the National Crime Agency under section 2(7) of the Extradition Act 2003 on 28 June 2021. The respondent provided a response dated 25 August 2021 to a request for further information (“the Further Information”).
The appellant was arrested on 28 July 2021, having, by appointment, attended voluntarily with his solicitor at a police station. Following his production at court that day, he did not consent to extradition. The extradition hearing was adjourned to 8 November 2021. He was remanded on conditional bail and has been on bail throughout.
The arrest warrant relates to two offences of which the appellant was convicted and for which he was sentenced in Bulgaria. The total sentence imposed, and which it remains for him to serve, is two years' imprisonment, comprised of one year's imprisonment for each offence, to be served consecutively.
The two offences are set out in reverse chronological order in the arrest warrant, but I will summarise the details here in chronological order, based on the information in the arrest warrant as supplemented by the Further Information:
i) The first offence (“First Offence”) was a public order offence contrary to Article 325 of the Bulgarian Penal Code, committed on 17 July 2014, when the appellant was 21 years old. The appellant “committed obscene acts, grossly violating public order and expressing obvious disrespect for society” against two employees of the Karlovo Regional Police Department. The appellant and his father were apparently creating a disturbance in a restaurant in Banya in Plovdiv Province, Bulgaria. The appellant and his father were making noise, banging on window displays and tables, and quarrelling with staff. A waitress called the restaurant owner, who in turn called the police. Two police officers in uniform arrived initially. The appellant and his father refused to cooperate with them and acted in a “frankly threatening manner” towards them, including telling one of the police officers that they knew him, knew that he had a family, and knew where he lived. Eventually, another patrol car was summoned to assist, and two further police officers arrived. During the incident, the appellant and his father shouted, behaved “indecently”, and threatened, insulted and pushed police officers. The appellant and his father were in due course taken to the police station. At the police station, the appellant and his father again threatened a specific officer, saying that they knew where he lived, knew that he had a wife and child, and threatened that after they were released, they would go to his house and “rape him”.
ii) The second offence (“Second Offence”) was driving a motor vehicle after the use of drugs, committed on 19 June 2017, when the appellant was 24 years old. The appellant was stopped by police after they had observed him driving “uncertainly”. Having observed that the appellant's eyes were red, his pupils dilated, his gait unsteady, and his speech slurred and unintelligible, the police administered a roadside test, which identified that he had been driving having used tetrahydrocannabinol and amphetamine, contrary to Article 3436 of the Bulgarian Penal Code.
According to the Further Information:
i) The appellant pleaded guilty to the First Offence on 26 February 2015 in the Karlovo District Court and was sentenced to one year's imprisonment, suspended for three years. He was present at the hearing where he was convicted and sentenced.
ii) On 22 June 2017, the appellant was present at a hearing before the Plovdiv District Court in relation to the Second Offence, at which he was represented by Bulgarian counsel, during the course of which he was made subject to a pre-trial detention order (referred to in the Further Information as “Supervision with signing”) under which he was subject to:
a) an obligation to notify the judicial authorities of his change of address; and
b) an obligation not to leave his place of residence without the permission of the relevant authority.
iii)...
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