Vasilev (Appellant) Regional Prosecutor's Office, Silistra, Bulgaria (Respondent) Nikolov (Appellant) Regional Prosecutor's Office, Pazardjik, Bulgaria (Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mitting,Lord Justice Burnett |
| Judgment Date | 14 April 2016 |
| Neutral Citation | [2016] EWHC 1401 (Admin) |
| Date | 14 April 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/340/2016 |
[2016] EWHC 1401 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Burnett
Mr Justice Mitting
CO/340/2016
CO/2968/2015
Mr Joseph Middleton (instructed by Hodge Jones Allen) appeared on behalf of the Appellant Vasilev
Mr David Josse QC and Mr Azize Chelliah (instructed by A-Z Law Solicitors) appeared on behalf of the Appellant Nikolov
Mr Nicholas Hearn and Miss Natasha Draycott (instructed by Crown Prosecution Service) appeared on behalf of the Respondents
By a conviction European arrest warrant ("EAW") issued by the Public Prosecutor of Silistra, Bulgaria, on 9 July 2003, the extradition of Petrov Valentin Vasilev is sought to serve sentences of imprisonment totalling four-and-a-half years for offences of theft and burglary committed in 2001 and 2005. A sentence of two years' imprisonment for the 2005 offences imposed by the Regional Court of Silistra became final on 13 August 2007. A suspended sentence of two-and-a-half years' imprisonment imposed on 2 October 2002 for the 2001 offences was activated by the same court on the same date.
The EAW was certified by the National Crime Agency ("NCA") on 22 July 2015. Vasilev was arrested on 6 August 2015.
After a contested hearing his extradition was ordered by Senior Judge Riddle on 18 January 2016. The sole ground of challenge was that his extradition to Bulgaria would infringe his right under Article 3 European Convention on Human Rights ("ECHR") not to be subjected to inhuman or degrading treatment or punishment because of the conditions in which he would be required to serve his sentence of imprisonment in Bulgaria. In a detailed and careful reserved judgment the Senior District Judge determined that the presumption that Bulgaria would comply with Convention obligations had not been rebutted by the extensive material presented to him. Even if that were not the case, an assurance given on 7 September 2015 by the Bulgarian Deputy Minister of Justice could be accepted. In consequence, there were not substantial grounds for believing that Vasilev would face a real risk of being subjected to inhuman or degrading treatment or punishment in Bulgaria if extradited.
Vasilev appeals against that decision on the sole ground that the Senior District Judge's decision that his extradition would not infringe his Article 3 rights was wrong.
By a conviction EAW issued by the Public Prosecutor of Pazardjik, Bulgaria, on 11 July 2014 the extradition of Petar Stoimenov Nikolov is sought to serve a total sentence of one-and-a-half years' imprisonment imposed by the Regional Court of Pazardjik which became final on 17 March 2012 for two offences of driving a motor car without a licence committed on 5 October 2009 and 13 November 2011. For the first offence a sentence of probation for three years and administrative restrictions were initially imposed. The second offence occurred during the period of probation and administrative restriction. The total sentence comprised six months' imprisonment for the first offence and one year's imprisonment for the second offence to be served cumulatively.
The EAW was certified by the NCA on 5 August 2014. Nikolov was arrested on 11 December 2014.
After a contested hearing, at which he represented himself, his extradition was ordered by District Judge Blake on 18 June 2015. The sole ground of challenge raised before the District Judge was that his extradition would infringe his right to respect for his private and family life under Article 8 ECHR. No Article 3 issue was raised or evidence led about it. The sole ground of appeal is that his extradition would infringe his right not to be subjected to inhuman or degrading treatment or punishment under Article 3 ECHR. The requesting judicial authority does not object to the belated raising of this issue or to require Nikolov to justify the admission of evidence not adduced before the District Judge on Fenyvesi grounds.
Permission to appeal has been granted in both cases. No facts specific to either appellant are relied on. Both raise the same generic challenge to extradition on a conviction EAW to Bulgaria. In each case assurances have been given by the requesting judicial authority in identical terms. The material put before the Senior District Judge in Vasilev's case, updated, without objection, to reflect subsequent developments, is that relied on by both appellants. Both appeals stand or fall together.
The requesting judicial authority expressly accepts for the purposes of this appeal that, but for the assurances given, prison conditions in Bulgaria are such that there is a real risk that the rights of each appellant not to be subjected to inhuman or degrading treatment or punishment would be infringed by their extradition to Bulgaria by reason of the conditions in which they might be required to serve their sentence of imprisonment. A different stance was adopted before the Senior District Judge. It was successfully submitted to him that, notwithstanding the trenchant criticisms of prison conditions in Bulgaria to which I refer below, the presumption that Bulgaria would fulfill its obligations under Article 3 even in the absence of assurances was not rebutted. That argument is no longer advanced. Instead, the concession to which I have referred has been made. It has been rightly made. In consequence, it is not necessary to refer in the same detail to the extensive material on prison conditions in Bulgaria as it would have been if the issue had been live. All that need be cited is sufficient to permit the efficacy and reliability of the assurances to be assessed.
The prison estate in Bulgaria has been an object of concern to the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) since the first of ten visits which it carried out to Bulgaria in 1995. It has, exceptionally, been the subject of a public statement by the CPT on 26 March 2015. Prior to 2015, the Strasbourg Court had found a breach of Article 3 ECHR on account of poor conditions of detention in Bulgaria in twenty-five individual cases. In Neshkov and Others v Bulgaria the Strasbourg Court adopted the pilot procedure and, in a judgment which became final on 1 June 2015, required preventative and compensatory remedies to be made available by 1 December 2016. Neither the CPT nor the Strasbourg Court adopt these measures save in cases of serious, unremedied, systemic deficiencies in prison conditions in the state concerned.
According to Appendix 1 of the response of the Bulgarian Government to the report of the CPT dated 12 November 2015, there are eleven male prisons, one female prison and one correctional home in Bulgaria under the jurisdiction of the Ministry of Justice. On the basis of available space within a cell or dormitory of 4m 2 per person, the official capacity of the prison estate is 8,971. The prison population was 9,081 on 31 December 2012, 7,942 on 30 November 2014 and 7,527 on 3 June 2015. According to information supplied to the Committee of Ministers of the Council of Europe in February 2016, the total has now fallen to 7,408. There is no reason to doubt these figures. All but one of the male prisons contain both closed and open sections.
The picture painted by the statistics suggests that the prison population is comfortably below the rated capacity of the prison estate. This has not, however, prevented serious overcrowding in the closed sections of some prisons, including the three visited by the CPT between 13 and 20 February 2015: Sofia, Burgas and Varna prisons. On the basis of government figures for the prison population on 30 November 2014 (the last date before the visit on which official figures were collated) the rated capacity of the closed sections of Sofia prison was 951 and occupancy 809 inmates. However, the CPT report and the Strasbourg Court's judgment in Neshkov put the rated capacity of the closed sections significantly below that figure. The rated capacity of the closed sections of Burgas prison was 244 and occupancy 602 inmates. The rated capacity of the closed sections of Varna prison was 270 and occupancy 439 inmates. By contrast, the open-type facilities at a each prison, including the three visited, were substantially under-used: at Sofia prison buildings with a rated capacity of 419 housed 196 inmates; at Burgas prison those with a rated capacity of 201 housed 178 inmates; at Varna prison those with a rated capacity of 296 housed 209 inmates.
Overcrowding has not been the only problem. Very poor material conditions have been at least as serious. The prison estate comprises prisons built in the early 20th century and correctional facilities built for working prisoners under the communist regime. Until very recently their facilities had not been modernised. In consequence, many prisoners did not have access to lavatory facilities at night other than a bucket in a communal cell. That is still the case in some cells in some prisons. Ventilation, heating and access to daylight were, and in some cases still are, inadequate in many cells and dormitories. Many were and some still are infested with vermin. Hygiene is very poor in lavatories and kitchens.
Useful summaries of the conditions in and before February 2015 (the date of the CPT visit) are provided in paragraph 13 of the CPT public...
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