Vladimir Dochev v District Prosecutors Office in Yambol Bulgaria
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 07 July 2022 |
| Neutral Citation | [2022] EWHC 1761 (Admin) |
| Docket Number | Case No: CO/2681/2021 |
| Court | Queen's Bench Division (Administrative Court) |
| Year | 2022 |
[2022] EWHC 1761 (Admin)
Mr Justice Fordham
Case No: CO/2681/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Joshua Kern (instructed by Kayders Solicitors) for the Appellant
The Respondent did not appear and was not represented
Hearing date: 7/7/22
Judgment as delivered in open court at the hearing
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Note: This judgment was produced and approved by the Judge, after using voice-recognition software during an ex tempore judgment.
Introduction
This was the in-person hearing of a renewed application for permission to appeal in an extradition case. The Appellant is aged 29 and is wanted for extradition to Bulgaria. That is in conjunction with a conviction European Arrest Warrant (EAW) issued on 30 May 2019 and certified on 19 November 2020. It relates to custodial sentences, in aggregate of 20 months, for possession of methamphetamine in January 2018 and September 2018. The second offence was committed by the Appellant while he was serving a suspended sentence in relation to the first offence, in consequence of which the suspended sentence was activated. In ordering extradition on 30 July 2021, DJ Goldspring (“the Judge”) found the Appellant to be a fugitive having heard oral evidence from the Appellant at a hearing on 28 May 2021. The Judge refused an application on behalf of the Appellant to adjourn that oral hearing. There was a jurisdictional point relating to the belated service of the appeal notice. That was resolved – and I have been able to reassure Mr Kern that it was resolved – in light of the decision of the Supreme Court in O'Connor [2022] UKSC 4, by an extension of time granted by Sir Ross Cranston on 28 January 2022. It was Sir Ross Cranston who had refused permission to appeal on 29 December 2021. May J adjourned this oral hearing, directing skeleton arguments on the Article 14 ECHR issue.
Adjournment
A point has been raised and had been maintained in writing in relation to the Judge's refusal of an adjournment: cf. Olah v Czech Republic [2008] EWHC 2701 (Admin). That point was the subject of a parallel application for permission to for judicial review which Sir Ross Cranston refused, and certified as totally without merit, on 29 December 2021. Insofar as it still forms part of this appeal, I agree with Sir Ross Cranston that there is no viable argument impugning the Judge's refusal to adjourn.
Article 14
At the heart of this appeal, which the interchange that oral hearings allow has brought into clear focus, is what is said by Mr Kern to be a distinct and viable Article 14 ECHR ground of appeal, whether Article 14 is read with Article 3 or read with Article 8. It concerns the Appellant's position as an openly gay man who would be serving a custodial sentence in Burgas Prison in Bulgaria. That is the relevant custodial setting, based on the evidence, including an assurance of a type which the recent lead case confirms is adequate so far as concerns general prison conditions and Article 3 ECHR: Mihaylov v Bulgaria [2022] EWHC 908 (Admin). The focus of the Article 14 argument is on the risk of inter-prisoner violence and ill-treatment, and insufficiency of protection by the Bulgarian state authorities, in the custodial setting. It is common ground that the specifically relevant custodial setting is the Open Prison Hostel at Burgas Prison.
The Judge's approach
The Judge analysed the issues relating to threats to the Appellant by reason of his sexual orientation, from other prisoners, through the prism of Article 3. Article 8 ECHR having been raised, the Judge also went on to conduct the familiar Article 8 ‘balance sheet’ exercise. He found that extradition would be compatible with all three ECHR Articles Article 3, Article 8 and Article 14: . In the context of Article 3, the Judge considered an expert report of Dr Petrov (26 March 2021), Dr Petrov having visited Burgas prison in February 2021 including the Open Prison Hostel and having spoken to the Governor and obtained information from the person who is (as a shorthand) described as the welfare officer. The Judge did not consider, in light of his findings in relation to Article 3, that a separate line of analysis was needed regarding Article 14. The Judge's analysis regarding the risk of ill-treatment as a gay man in Burgas Prison involved the following headline points.
i) First, the Judge identified a need for the Appellant to adduce an “up-to-date” body of “cogent evidence” (i) amounting to an international consensus of “systemic failings within the prison system” to “deal with and protect those who are homosexual” or (ii) to show that the Appellant “as a specific individual” faces being treated in an “inhumane, degrading or torturous way”. Part of Mr Kern's arguments today was to submit that that approach to evidence, reflected in the Article 3 jurisprudence, would not constitute the appropriate test for considering failure to provide sufficient protection where what is being alleged is that the failure is a discriminatory failure (by reason of some discriminatory motivation purpose or ground).
ii) Secondly, the Judge concluded that the material adduced on behalf the Appellant in any event came nowhere near satisfying that test.
iii) Thirdly, the Judge identified, in any event, a “strong, albeit rebuttable, presumption” that Bulgaria as an EU member state would comply with its ECHR obligations (focusing on Article 3), absent “clear, cogent and compelling evidence” to the contrary. I interpose that there is no getting away from the fact that that is a presumption which is equally applicable to Article 14 compliance.
iv) Fourthly, the Judge concluded that there was no evidence which had been adduced on behalf of the Appellant which could serve to rebut that presumption.
v) Fifthly, and in support of those conclusions, the Judge explained that the expert report was of “little” or “limited value” and did not constitute a basis on which the Court could draw conclusions in relation to ill-treatment of gay men at Burgas Prison.
“Flagrant breach”
I put to Mr Kern at the start of this oral hearing that the starting point is that the test applicable for an Article 14 violation barring extradition is whether there is the relevant “real risk” on “substantial grounds” of a “flagrant breach” of Article 14 ECHR, by the Bulgarian state authorities, when Article 14 is read in conjunction with Article 8 or Article 3. Mr Kern told me that, on reflection, he did not accept that starting point, albeit that it was accepted and set out in the skeleton argument that he had filed. He submitted to me, by reference to an authority which had not made its way into the files of dozens of authorities filed for this hearing, that it was arguable that a different approach to “flagrant breach” would be applied in the context of extradition to European states. He relied on a July 2018 Luxembourg case called LM which he accepted was argued on the basis of a “flagrant breach” standard. One of the disadvantages of taking new points, on the hoof – in circumstances where there are been directions for written arguments, where authorities have been provided, where pre-reading has been done, and where (in this case) the Judge's clerk has confirmed with Counsel that all material that is needed is available – is that it then takes time to consider a new point which is raised, for the first time orally, with no notice to anybody. In the event, through the magic of electronic documents that allow ‘word searches’ I was able to put to Mr Kern an example, namely the case of Litwinczuk v Poland [2019] EWHC 2745 (Admin), a case which postdates Mr Kern's LM case. In Litwinczuk at §8 the judge (Julian Knowles J) adopts the familiar “flagrant denial” of justice test in the context of Article 6 E...
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