Sofia City Court, Bulgaria v Atanasova -Kalaidzhieva

This is the judgment of the court. The respondent, Dimintrinka Atanasova-Kalaidzhieva is the subject of a European Arrest Warrant (“EAW”) issued by the Sofia City Court, the appellant issuing judicial authority (“the IJA”), on 26 March 2010. On 17 March 2011 Senior District Judge Riddle, sitting at City of Westminster Magistrates Court discharged the respondent from the extradition proceedings brought under Part 1 of the Extradition Act 2003 on the ground that the request constituted an abuse of the process of the court. The IJA appeals against that decision under section 28 of the Extradition Act 2003.

This is the second time that Bulgaria has sought the extradition of the respondent. The remarkable background to the proceedings is as follows. The respondent is the former private secretary to the Bulgarian Prosecutor General to whom we shall refer as Filchev. The EAW alleges that in February 2000 the respondent was principal in an offence of murder committed as a joint enterprise with Plamen Kalaydjiev (her former husband), Orlin Avramov, and Nikolai Kolev. It is alleged that the conspirators met at the Kalaydjiev home where it was agreed that they would proceed to an apartment occupied by Ms Nadazheda Georgieva where Ms Georgieva would be killed. Ms Georgieva was also a secretary to Prosecutor General Filchev. The prosecutor’s case is that Nikolai Kolev, also a senior Bulgarian prosecutor, gave advice to the conspirators as to how to remove evidence of the killing. It is alleged in the EAW that he “offered them protection after the murder, speaking up for them and building an alibi in view of his influence as Prosecutor at the General Prosecution [sic] of the Republic of Bulgaria”. The EAW continues that, pursuant to the arrangements made, the respondent together with Kalaydjiev and Avramov entered Ms Georgieva’s flat and, while Kalaydjiev and Avramov held her down, the respondent killed Ms Georgieva with a weapon akin to a butcher’s cleaver. It is alleged that following the murder Ms Georgieva’s lawyer’s bag containing documents, a dictaphone, cassettes with recordings, a Motorola mobile telephone and the sum of $4,000 was stolen. The allegation of theft is a late addition to the case against the defendants. Mr Filchev has been variously referred to in the papers as Prosecutor General, Chief General Prosecutor, and Bulgarian Chief Prosecutor. We shall continue to refer to his office as that of Prosecutor General.

It is the respondent’s assertion that she has no personal knowledge of the murder of Ms Georgieva. She believes that she is the victim of a campaign by former Prosecutor General Filchev against Nikolai Kolev, herself and others to frame them for the murder. Mr Filchev was Prosecutor General for Bulgaria between 1999 and 2006. He is associated with the former communist party in Bulgaria. There have been consistent and prolonged allegations against Mr Filchev of corruption in public office. The following allegations have been widely reported in the Bulgarian press, television and other media: that he used his position to protect his brother from accusations of fraud; blackmail of magistrates, politicians and journalists; acceptance of bribes; corrupt prosecution of his political and business opponents, including former Supreme Court Prosecutor Nikolai Kolev. As Prosecutor General Mr Filchev was immune from prosecution. In 2001 and 2002 there was a trial of strength between the Ministry of Justice and the Prosecutor General over reforms of the Prosecutor General’s office. In circumstances to which we shall need to refer in more detail Nikolai Kolev became one of Prosecutor General Filchev’s main and implacable opponents, disclosing and threatening to disclose examples of his illegal activities. On 18 December 2002, the Supreme Judicial Council urged Mr Filchev to resign. On 30 December 2002 Nikolai Kolev was gunned down in front of his home in central Sofia. The circumstances were such that Mr Filchev was publicly accused of being implicated in the killing. The scandalous state of the office of prosecutor in Bulgaria was the subject of critical comment by the United States Ambassador on 10 December 2004. The National Union of Bulgarian Prosecutors issued a statement demanding Mr Filchev’s immediate resignation. The German and Dutch ambassadors and the European Affairs Minister joined the criticism of Prosecutor General Filchev. The EU Affairs Minister described Bulgaria as suffering from “a non-functioning judiciary” and was not fit for EU membership. Amid continuing criticism of the politicisation of the Prosecutor’s office Mr Filchev resigned in February 2006. Mr Filchev was appointed Bulgarian ambassador to Kazakhstan. In June 2006 he refused to attend the Sofia Military Court to answer questions concerning the discovery of intelligence devices in his flat. In June 2008 Mr Filchev was, at his own request, relieved of his post as ambassador. He returned to Bulgaria where he continued to comment publicly upon events during his term as Chief Prosecutor including the prosecution of the respondent and her co-accused.

The first request for extradition was made on 16 July 2001 under the hand of the Ministry of Justice in the Republic of Bulgaria. The request was made by the Public Prosecutor General of the Republic of Bulgaria, Nicholai Filchev to the then Home Secretary Mr David Blunkett. A warrant for the respondent’s arrest was issued on 13 November 2001 in Bow Street Magistrates Court. The respondent had fled Bulgaria on 17 August 2000 claiming that threats had been made to her life by Prosecutor General Filchev. She claimed asylum in the United Kingdom in October 2003 but the claim remained undetermined, presumably because Bulgaria joined the European Union. The respondent was arrested pursuant to the warrant on 21 November 2007. Following her arrest an application for a writ of habeas corpus was issued and the matter was considered by the Divisional Court (Scott Baker LJ and Cranston J) on 9 October 2009. Judgment was handed down on 4 November 2009. The court was provided with two detailed witness statements, one from the respondent and the other from Victor Banev, an advocate in private practice in Sofia, who was acting for one of the respondent’s co-accused in the trial which had commenced in the respondent’s absence. In her witness statement the respondent claimed that in March 1999 she had witnessed threats made personally by Mr Filchev to two prosecutor colleagues, Nikolai Kolev and a Mr Jambov. She claimed that Mr Filchev threatened to kill them if they did not close investigation files into two cases, one involving a substantial sum of money transferred to a foreign bank and another into missing weapons. The respondent claimed that she was told by Mr Filchev that if she disclosed anything of what she had witnessed she would regret it for the rest of her life. Believing that she was in league with Prosecutors Kolev and Jambov to damage him, Mr Filchev continued to threaten her until, in the autumn of 1999, she resigned. She claims that she was the victim of anonymous calls. When she reported the continued harassment to the police Mr Filchev intervened personally and threatened her with a pistol. The following day she says that she was visited at home by two men in civilian clothes and subjected to a beating which caused her rib injuries and damage to her liver and a kidney. She was threatened that she should say nothing against Mr Filchev.

The respondent says that in early 2000 Nadejda Georgieva invited the respondent to her flat. According to the respondent Ms Georgieva confided that the respondent was in danger. Ms Georgieva was in possession of high quality audio surveillance equipment. She played tapes of conversations with Mr Filchev which she claimed secretly to have recorded as her “insurance policy” against Mr Filchev. The respondent believes that Prosecutors Kolev and Jambov were provided with the tapes. At a press conference in February 2000 Prosecutors Kolev and Jambov revealed the state of their investigations into Mr Filchev’s illegal activities and abuse of power. The murder of Ms Georgieva took place at the end of February 2000. In early March the respondent says that she went voluntarily to the police to inform them of what she knew about the incriminating evidence which had been in the victim’s possession. She was shown photographs of the scene. She claims that as soon as she mentioned the possible involvement of Mr Filchev she was interrogated, fingerprinted and hair and saliva samples were taken. She was told that the purpose was to eliminate her from enquiries. She was asked to take a lie detector test and did so. To her surprise the test was attended by a panel of 11 or 12 people. She was subjected to harsh lighting conditions and she was repeatedly asked whether she knew how Ms Georgieva had been killed. It was, she says, a trick question because she had been informed by the investigators of the nature of Ms Georgieva’s injuries and had been shown photographs of the scene. She claims that a chair was thrown at her by Investigator Oleg Ianchev. She was insulted and threatened. A stool was swung against her knee. She was told that they were on the sixth floor of the building, implying that she might be thrown out. At midnight Prosecutor General Filchev appeared. He and the respondent were alone when he took out his pistol and placed it on the table between them. The respondent pleaded to be forgiven, promising that she would never reveal anything about Filchev again. So frightened was she that she wet herself. To her surprise, however, she was released.

In March 2000 Kolev and Jambov gave another press conference. In April 2000 Mr Kolev wrote to the Senate and the Constitutional court making allegations about Prosecutor General Filchev. At a further press conference Jambov called for Mr Filchev’s resignation. The following day Mr Jambov was found dead in his office in a security building, shot through the head and heart. In May 2000 the respondent and her husband spent a two week holiday in the United Kingdom. They left Bulgaria openly with the relevant visas. In August, after they had returned, she had a mysterious phone call from Mr Filchev and, following advice from her lawyer, she left Bulgaria for the United Kingdom on 17 August 2000. At that stage the respondent says that she was not concerned about the risk of any proceedings but for her physical safety. She received further threats from Mr Filchev via her mobile phone in October 2000. Her husband was arrested in Slovakia in 2001.

The respondent claimed that she believed she continued to be in great personal danger since she was the only person who could speak of the incriminating conversation between Filchev, Kolev and Jambov in 1999.

Victor Banev provided to the Divisional Court details of the desultory progress of the trial in Sofia. He says that nobody in the trial, either the lawyers representing the defendants, the court prosecutor or the judge knew anything about the extradition request. On 28 January 2008 the trial was suddenly suspended when it became known that an arrest warrant had been executed in London. The information was provided to the court by the Public Defence Lawyer, Mr Tankov, who had been appointed to represent the respondent in her absence. It became clear that Prosecutor General Filchev had acted alone in pursuing the extradition request without the knowledge of the court. The proceedings in Bulgaria cannot continue while the respondent’s location is known.

Pending the application for habeas corpus in the Divisional Court, a request was made by the United Kingdom for information from the Sofia City Court which replied on 7 October 2009. The Sofia Court assured the Minister for Justice in the Republic of Bulgaria as follows (with allowances for translation):

“The court found that all guarantees for fair proceedings are available according to the requirements of the Bulgarian Procedure Law and the related conventions of the Council of Europe and European Union’s directives. All the defendants have their own defenders were great professional skills in this scope and a long experience as well. At the request of the defence a lot of experts and witnesses were personally interrogated by the court until this moment. When the defendant Atanasova-Kalaidzhieva appears personally and is being heard by the Bulgarian Court, the same will have all procedure guarantees stipulated in the Bulgarian Criminal Procedure Code, namely: she will have access to the entire case, she will have the possibility to give personal explanations, to require witness’s interrogation, to present other evidence, she will have the right to be represented and defended by the [lawyer] chosen by her and in such a case the court will have to remove the lawyer appointed officially. The defendant will have the right to appeal all indictments of the court including the enacted sentence … the solicitor Victor Banev mentioned in the letter is the defender of the defendant Plamen Dimitro Kalaydjiev – the defendant Dimitrinka Atanasova-Kalaidzhieva’s husband and what was said by him, and namely that the case could only continue after giving the defendant, completely corresponds to the recent situation. According to the mentioned above we kindly ask you to confirm the request of the Republic of Bulgaria …”

Mr Watson, who represented the respondent in her application for habeas corpus, listed for the Court from the evidence of Mr Banev a number of features of the prosecution which gave rise to serious concern. Some of the more significant were: The investigation file was marked “top secret” and was being closely observed by Prosecutor General Filchev himself. There was no legitimate reason for making the investigation file restricted. Its effect was to prevent access by defence lawyers who could not follow the investigation and could not be present at the interviews of witnesses as normally they would. The defence continued to have difficulty in obtaining official information about the case. There were serious irregularities in the original investigation. The original investigator was removed by the Prosecutor General because, he said publicly, he was not working hard enough. When the respondent’s husband was returned to Bulgaria from Slovakia he was not taken as he should have been to the National Investigation office but to the Transport Police Detention Centre, a place for detention and interrogation under the personal supervision of Prosecutor General Filchev. He remained in custody for a period of 18 months but was interviewed on only 2 occasions. Many of the witnesses interviewed were employees of the prosecutor’s department. Several witnesses refused to attend to give evidence. In June 2006, when the first trial was nearing its conclusion, the judge recused himself with the result that the trial had to start again. The belief held among the defence advocates was that a point in the trial had been reached when the judge had either to make a decision unfavourable to the prosecution or recuse himself. The replacement trial judge commented that the investigation had been “illegal and unprofessional”. The only meaningful change to take place, however, was the declassification of the “top secret” file of evidence which did not undo or correct the irregularities in the original investigation. The evidence comprised merely expressions of belief as to the inter-relationship between the victim of the murder and the accused. No attempt was made to interview or investigate Mr Filchev. In particular there has been no examination of the issue whether the deaths of Mr Kolev and Ms Georgieva are linked. There was evidence that Ms Georgieva had acted as a go-between in criminal activity involving fraud on a major financial institution in Bulgaria in respect of which she may have been acting on the instructions of a man called Christian Mastiv. Mr Mastiv was murdered three weeks after Ms Georgieva’s death.

The Republic of Bulgaria made no reply to the evidence submitted to the Divisional Court on the respondent’s behalf. Mr Hardy QC, who appeared for the Government of Bulgaria to resist the application for habeas corpus, submitted that there was no need to respond. Bulgaria had become a member of the European Union and was therefore a party to the European Framework Decision of 13 June 2002. The Court should, Mr Hardy, submitted, accept that the respondent would receive a fair trial in Bulgaria.

In giving the judgment of the Court, Scott Baker LJ said at paragraph 29:

“The problem in the present case is that the evidence of the applicant and Banev is unanswered and, if true, raises some very disturbing concerns. Mr Hardy points out that the concept of bad faith has disappeared entirely from the 2003 Act, although some matters that might have been relevant to the question of bad faith might fall to be considered under abuse of process. The thrust of his argument is that Bulgaria is now a member of the European Community and we can rely on the Bulgarians conducting a fair criminal trial process. Events have moved on since the days when Filchev was general prosecutor. It is accepted by both sides that issues under Articles 2 and 3 of the European Convention on Human Rights are not relevant on the present application and would in any event fall for consideration before the applicant’s removal.”

The court concluded that the applicant was entitled to the relief sought because the allegation of bad faith was made out.

The day after the Divisional Court issued the writ of habeas corpus the European Court of Human Rights, Fifth Section, published its judgment in Kolevi v Bulgaria (application no. 1108/02). On 17 December 2001 Nikolai Kolev lodged his application with the European Court. Following his death his widow was joined as second applicant. Mr Kolev claimed that on 10 January 2001 he had purportedly been dismissed from his position as prosecutor at the Supreme Administrative Prosecution office by Prosecutor General Filchev. On 23 May 2001 a chamber of the Supreme Administrative Court quashed the dismissal as contrary to law. In 2002 Mr Kolev resumed his office. Mr Kolev made clear his concerns for Prosecutor Filchev’s psychiatric health. He had an ungovernable temper, was authoritarian, issued unwarranted threats of arrest and prosecution if his orders were not obeyed, ordered unlawful actions to put pressure upon his opponents, and he commenced a campaign of intimidation against Mr Kolev. Criminal proceedings were improperly commenced against Mr Kolev. On 31 May 2001 Mr Kolev wrote to the Minister of the Interior and gave interviews to the press stating that he had learned that the Prosecutor General had ordered the fabrication of criminal charges against him. Drugs would be planted on him, and he would be arrested and charged with drugs offences. Mr Kolev repeated his accusations in a complaint to the Supreme Judicial Council on 12 June 2001. He gave details, indicating the names of several persons who were allegedly involved in the plot, and insisted that the Supreme Judicial Council should appoint a commission to investigate crimes allegedly committed by Mr Filchev. On 20 June 2001 Mr Kolev was arrested in Sofia in front of his home by officers of the anti-terrorist squad accompanied by two high ranking prosecutors. Immediately after his arrest it was claimed that several paper envelopes containing 2.6 grammes of heroin and 1.89 grammes of cocaine had been found in Mr Kolev’s pockets and in his son’s car. In consequence, Mr Kolev was detained for a provisional period of 72 hours. At the expiration of that period a second prosecutor issued a fresh order for Mr Kolev’s provisional detention for a second period of 72 hours. When Mr Kolev was brought before Sofia City Court and the circumstances were outlined Mr Kolev was nevertheless remanded in custody. The court refused to rule upon the lawfulness of Mr Kolev’s second administrative detention on 3 July 2001. The Sofia Court of Appeal dismissed Mr Kolev’s appeal notwithstanding that prosecutors were immune from criminal proceedings. In November 2001 the Sofia City Court terminated proceedings before it and referred the case back to the prosecuting authorities. Mr Kolev was released from house arrest.

In November 2002 the Supreme Judicial Council agreed to consider public allegations made against Prosecutor General Filchev submitted by a former Member of Parliament Mr Sugarev. The Council declined Mr Kolev’s request for leave to appear. Prosecutor General Filchev declined to attend. The Council heard evidence from the Head of the National Security Service that Mr Filchev had given instructions for a cargo aeroplane loaded with military equipment to be allowed to leave Bulgaria despite suspicions that the shipment violated a UN-imposed arms embargo. Mr Filchev had explained to him that he had intervened at the request of the President of the Ukraine whose son was co-owner of the company to which the aircraft belonged. Information was passed to the President of Bulgaria and the Minister of the Interior. The result was that two sets of criminal proceedings had been opened against the Council’s informant by prosecutors. A former Interior Minister gave evidence that Mr Filchev had threatened him with criminal proceedings which had then been opened on dubious grounds against Ministry officials working with him, including his press officer. A prosecutor from Varna Appeals Prosecution Office stated that he had been intimidated and threatened by Mr Filchev. He had created a climate of fear and submission within the prosecuting service. Terrorising subordinates had become the usual method of management, and unconditional submission to the Prosecutor General was the most valued quality in a subordinate. Unlawful orders were given orally. Refusal was punished by arbitrary transfers. Criminal charges were brought against members of the families of prosecutors. A prosecutor from Pleven gave evidence that she and several of her colleagues had been prevented improperly from working upon a case which had substantial financial implications. When they complained to the Supreme Judicial Council she was summoned to appear before high ranking prosecutors and told to withdraw her complaint. The Deputy Chief Public Prosecutor had said “a second case of a prosecutor committing suicide may occur”. Three months earlier a high ranking prosecutor had indeed committed suicide leaving a note that Mr Filchev should resign.

Of particular relevance to the present case is the European Court’s description of the evidence of a Mr I, an investigator, (he may or may not be the Oleg Ianchev referred to at paragraph 5 above) who gave evidence that he investigated the murder of Ms Georgieva. Ms Georgieva had a close personal relationship with Prosecutor General Filchev. Mr I discovered evidence of criminal acts committed by prosecutors. At paragraph 58 of its judgment the Court continued:

“His efforts to secure evidence and investigate were frustrated, however, apparently as a result of repeated information leaks. Since the only persons who knew about the planned searches and seizures had been the Chief Public Prosecutor and five high ranking prosecutors from his close circle, the leak must have come from them. The Chief Public Prosecutor personally supervised the course of the investigation despite his close relationship with the victim. Also Mr I discovered that two persons probably implicated in the murder had fled the country with the help of the Chief Public Prosecutor. As “punishment” for his probing of these facts Mr I was later unlawfully ordered to retire.”

Heated debates took place within the Supreme Judicial Council. However on 18 December 2002 the Council adopted a decision which the Court described as follows:

“The Chief Public Prosecutor had introduced an authoritarian style and unlawfully “punished” prosecutors by transferring them or depriving them of salary bonuses and that an atmosphere of fear was paralysing the normal functioning of the prosecution system. On the basis of these and other findings concerning specific violations of the administrative rules, the council called on Mr F to resign. The 25 member council adopted the decision by 13 votes to 9 with one abstention. The decision was not legally binding, as at the relevant time the constitutional ground for termination of the Chief Public Prosecutor’s appointment was very limited … Mr F refused to resign.”

Mr Kolev made his complaint under Article 5 of the European Convention in respect of his detention in 2001. However, on 28 December 2002, during the evening, Mr Kolev was shot dead by an unknown assailant in front of his home in Sofia. The police were alerted immediately by passers-by. Several police officers and an investigator from the Sofia Investigation Service arrived at the scene, searched the area for several hours and interviewed passers-by. At the scene the police found and collected bullets and cartridges, a revolver and a hand grenade which had not exploded. The Deputy Chief Public Prosecutor, the Interior Ministry Secretary and other high ranking officials visited the scene on the same evening. An investigation was opened. Mr Kolev had received 8 shots, some of them to the head. On 30 December 2002 a senior officer of the National Anti-terrorist Squad was shot and killed by an unknown assailant. It was later to be suggested by Mr Kolev’s widow and other informants that the murder was in all probability connected with the murder of Mr Kolev since the officer had allegedly possessed information about Mr Kolev’s murderer.

On 29 December 2002 Mr Sugarev, who had previously accused the Prosecutor General of committing crimes, appeared before the investigator wishing to assist the investigation. He passed on to the investigator information which he had obtained from Mr Kolev including evidence which incriminated Mr Filchev in the murder of Mrs Georgieva in February 2000. Mr Sugarev stated that Mr Kolev had himself been implicated for a period in unlawful activities ordered by Mr Filchev but had later refused to continue and had begun to collect evidence against Mr Filchev. Mr Kolev had told Mr Sugarev that a number of high ranking prosecutors at the Supreme Cassation Prosecution Office, and others, spent time organising “revenge” against the “enemies”. Mr Kolev had named Alexsei Petrov an officer in the National Anti-terrorist Squad, as one of Mr Filchev’s confidants. Mr Petrov had allegedly blackmailed a banker and managed to obtain large amounts of money from him. The banker had finally complained but in response had been arrested on fabricated charges. A bomb had later been found in his flat. Mr Sugarev submitted to the investigator a copy of a written statement made by the banker in December 2000. Mr Sugarev described in detail several more cases of alleged crimes committed by Mr Petrov and the Prosecutor General about which he had learned from Mr Kolev. Mr Sugarev gave evidence that Mr Kolev had told him of his fears that Filchev had ordered Petrov to have him killed.

In January 2003 the Council heard evidence from a former trade union leader that he too had conversations with Mr Kolev, including one on the day of his murder. Mr Kolev had told him about his efforts to obtain information incriminating Prosecutor General Filchev.

On 15 January 2003 Mr Kolev’s widow, the second applicant to the European Court, addressed the Supreme Judicial Council. She was a prosecutor from the Supreme Cassation Prosecution Office. She accused Mr Filchev of having ordered her husband’s murder together with two men whom she named, one of them being Mr Petrov. Mrs Koleva complained to the European Court that Bulgaria was in breach of its obligations under Article 2 ECHR. On several occasions the Sofia Prosecutor’s Office purported to suspend or stay the investigation into her husband’s murder. Mrs Koleva gave the same statements to the investigators as she had to the Supreme Judicial Council. She described her own observation of the atmosphere of paranoia created by the Prosecutor General among her colleagues. She noted that the two prosecutors who had allegedly participated in planting drugs and arresting Mr Kolev on fabricated charges had shortly afterwards been promoted. In February 2006 the investigators received information from the Sofia police that one of the five officers who had participated in Mr Kolev’s arrest on 20 June 2001 had been named as the murderer by an informant who refused to disclose his name and would not testify, even as a protected witness. On 24 September 2008, a prosecutor at the Sofia Prosecution Office ordered the suspension of the investigation, considering that there was insufficient evidence to bring charges in relation to Mr Kolev’s murder.

For reasons the details of which do not concern the present appeal, the Court found a breach of Article 5 in relation to a period of house arrest suffered by Mr Kolev in 2001 at a time when, by the law of Bulgaria, he was absolutely immune from prosecution. As to the application brought under Article 2 the Court noted the abundance of evidence in possession of the investigative authorities to the effect that Mr Filchev may have been implicated in Mr Kolev’s murder (paragraphs 195 – 200). The court considered that, having regard to the information available, the investigators should have explored the allegation that the Prosecutor General and other high ranking prosecutors and officials might have been implicated in Mr Kolev’s murder, even if the allegation was eventually to prove unfounded. The court reasoned at paragraph 201:

“That is so because, as the court has stated in previous cases, the investigation’s conclusions must be based on thorough, objective and impartial analysis of all relevant elements. Failing to follow an obvious line of enquiry undermines the investigation’s ability to establish the circumstances of the case and the person responsible. Such an investigation cannot be seen as effective …”

The court concluded that nothing effective was done to interview those who had come under suspicion. At paragraph 204 and following the court said:

“204.

Indeed, until September 2003 it was legally impossible in Bulgaria to bring criminal charges against the Chief Public Prosecutor without his consent. As a result he could not be removed from office against his will even if he happened to commit the most serious crime, as his suspension was a pre-requisite for the termination of his term of office under the constitution, as in force at the relevant time … Moreover, the Chief Public Prosecutor could not be temporarily suspended from duty, as that could only be done if charges had been brought against him … In these circumstances, in the initial period of the investigation into Mr Kolev’s murder, it was legally impossible to investigate any suspected involvement in the Chief Public Prosecutor.

205.

Furthermore, even though the above deficiency was eventually remedied …, the court observes that it is undisputed by the respondent government that as a result of the hierarchical structure of the prosecution system and, apparently, its internal working methods, no prosecutor would issue a decision bringing charges against the Chief Public Prosecutor. This appears to have been due to the fact that the Chief Public Prosecutor and high ranking prosecutors have the power to set aside any such decision taken by a subordinate prosecutor or investigator. As a result, it is still the case that the Chief Public Prosecutor cannot be temporarily suspended from duty against his will, as that can only be done if charges had been brought against him …

206.

In the proceedings before the court, the Government have not shown that at least some of the numerous grave allegations made during the relevant period against Mr F, the Chief Public Prosecutor … were ever investigated, at least at the level of preliminary enquiry. In the court’s opinion this fact is highly relevant in the present case as it corroborates the applicants’ allegation concerning the absence in Bulgarian law of sufficient guarantees for an independent investigation into offences of which the Chief Public Prosecutor or other high ranking officials close to him may be suspected.

207.

This situation was apparently the result of a combination of factors including the impossibility of bringing charges against the Chief Public Prosecutor, the authoritarian style of Mr F as Chief Public Prosecutor, the apparently unlawful working methods he resorted to and also institutional deficiencies. In particular, the Prosecutors’ exclusive power to bring criminal charges against offenders, combined with the Chief Public Prosecutor’s full control over each and every decision issued by prosecutor or an investigator and the fact that the Chief Public Prosecutor can only be removed from office by a decision of the Supreme Judicial Council, some of whose members are his subordinates, is an institutional arrangement that has been repeatedly criticised in Bulgaria as failing to secure sufficient accountability …

208.

The court is not oblivious to the fact that a variety of state prosecution systems and divergent procedural rules for conducting criminal investigations may be compatible with the convention, which does not contemplate any particular model in this respect … Independence and impartiality in cases involving high-ranking prosecutors or other officials may be secured by different means, such as investigation and prosecution by a separate body outside the prosecution system, special guarantees for independent decision making despite hierarchical dependence, public scrutiny, judicial control or other measures. It is not the court’s task to determine which system best meets the requirements of the convention. The system chosen by the member state concerned must however guarantee, in law and in practice, the investigation’s independence and objectivity in all circumstances and regardless of whether those involved are public figures.

209.

In the present case, the court accepts as plausible the applicants’ assertion that, given the centralised structure of the Bulgarian prosecution system, based on subordination, its exclusive power to bring charges and the procedural and institutional rules allowing full control by the Chief Public Prosecutor over every investigation in the country, in the circumstances prevailing when Mr F was the Chief Public Prosecutor it was practically impossible to conduct an independent investigation into circumstances implicating him, even after the constitutional amendment allowing in theory the bringing of charges against him.”

The court found Bulgaria to be in breach of it’s obligations under Article 2 to provide an effective investigation into the circumstances of Mr Kolev’s murder.

This court notes that, notwithstanding Bulgaria’s accession as a member State of the European Union, the European Court held that Bulgaria was, during Mr Filchev’s period of office as Prosecutor General, institutionally and personally incapable of conducting an Art. 2 complaint investigation when prosecutors were themselves implicated in the death. We note the similarity between the public, but ineffective, clamour for impartial investigations into the deaths both of Mr Kolev and Ms Georgieva. It was ineffective by reason of the close personal control the Prosecutor General himself exercised over the investigations. We recognise the imperative that this court should not pre-judge allegations of impropriety by the prosecuting authority of a party to the Framework Decision which are unsubstantiated. Nevertheless, the findings made by the European Court provide significant support for Mr Banev’s evidence and for the Divisional Court’s decision in 2009.

This court has been provided, as was the Senior District Judge, with a bundle of copy reports appearing in the media in Bulgaria during the months which followed the decisions of the Divisional Court and the European Court of Human Rights. In February 2010 Alexsei Petrov was arrested as part of an operation called “Octopus”. His arrest was largely applauded in the press. He was charged together with several others with involvement with an organised crime group dealing in extortion, violence, prostitution and laundering money from a nationalised steel mill. There was no report of an investigation into any suspected involvement in the killing of Mr Kolev. Mr Petrov was later released and announced that he was running for election as President of Bulgaria. The Interior Minister, Mr Tsetanov described the decision to release Mr Petrov into house arrest as “disturbing”. In February 2010 it was announced that Mr Filchev was to be interrogated about his promotion and patronage of Alexsei Petrov. Atanas Atanosov, the former head of the Bulgarian counter-intelligence service, called for the arrest of Mr Filchev. The Interior Minister, Mr Tsetanov, said in an interview that “people from Filchev’s circle were still in the main security institutions”. Speaking of Operation Octopus, it was said by the Sofia News Agency that “the investigators suspect that through Tsetanov and Alexsei Petrov, Filchev used the state institutions for operations “including murders” against his enemies. Filchev’s name has been mentioned often in connection with the murder of prosecutor Nikolai Kolev (killed in Sofia in 2002)...”. Mr Filchev’s response appears to have been to re-surface in a succession of television interviews in which he denied Mr Tsetanov’s allegations and suggested that the United States Embassy might be manipulating him. We have been shown some of the remarks attributable to Mr Filchev. His television performances were bizarre.

In July 2010 the Interior Minister Mr Tsetanov, expressed little faith that the Bulgarian Judiciary could reform itself. On 27 September 2010 in an internet version of the Sofia Morning News the following report appeared:

“The former undercover agent to Bulgaria’s State Agency [for] national security, Alexsei Petrov, who is charged with a number of crimes will take the witness stand in another high profile case. The Sofia City Court ruled Monday to call Petrov to testify in the 10 year old murder of the lawyer from the city of Yambol, Nadazheda Georgieva, over the fact she has worked since October 1999 until her death at the swimming complex “Spartac” in Sofia owned by the ex-agent. Petrov’s testimony was requested by the attorney for Georgieva’s parents. He will be asked if he was informed about the murder before the police and how exactly he has received the information. According to the attorney, evidence went missing from the case mysteriously in a move that cannot be attributed to recklessness.”

There is no evidence as to whether Mr Petrov was in fact summoned to give evidence. As we have said, this court has been informed that proceedings in the trial in Sofia City Court have been stayed since 2008.

A public argument appears to have erupted in the press between the Interior Minister, the United States Ambassador and Filchev who is noted to have given 21 interviews over a period of 4 days in October 2010. On 14 October 2010 Bulgaria’s Prosecutor-General, Boris Velchev, announced that there would be an investigation into the performance of prosecutors working on the investigation into Mr Petrov’s activities. On the 28 November 2010 the newly appointed Chief of the High Court, George Kolev, announced that in his opinion it was absurd for anyone to think that Mr Filchev would order the murder of any person. Mr George Kolev had been the original judge appointed to preside over the trial of the respondent and her alleged co-conspirators. The respondent understands that Judge Kolev would sit on any appeal from a verdict of the Sofia court. Also in November 2010 Mr Filchev appeared on television with a copy of a “secret” report which, he said, had been compiled 9½ years previously and had concluded that the respondent was involved in drugs and arms trafficking for the mafia along with former prosecutor Nikolai Kolev and others. It is of relevance to the current appeal that in an extract from the “report” published on-line the respondent’s location and workplace in the UK are described. If, therefore, the report is genuine, its content would be completely inconsistent with the appellant’s case that the warrant could not be executed until 2007. The alternative is that the information was accurate but the “report” a later creation of Mr Filchev. No-one had heard of such a report until Mr Filchev produced it. Mr Asanov (paragraph 22 above), said to have been a signatory to the report, publicly disowned it saying its contents were a figment of Mr Filchev’s imagination. Allegations and counter-allegations continue to be publicly expressed in the Bulgarian press.

On 7 December 2010 the Sofia City Court in support of the European Arrest Warrant wrote to the Minister of Justice of the Republic of Bulgaria as follows (with allowance for translation):

“1.

A European warrant of arrest was issued for the accused Dimitrinka Atanasova-Kalaidzhieva. The court insist on its execution.

2.

The proceedings are put on hold already 4 years precisely because of waiting to the competent authorities of the United Kingdom to pronounce whether they will extradite the accused or not to the Bulgarian courts.

3.

The court finds that all guarantees for fair trial are present insofar as the requirement of the Bulgarian procedural code are met and also the respectively conventions of the European Council and the European directives. All accused are represented in proceedings by their own defendant counsels having rich professional experience and of many years practice. Upon demand of the defence so far many witnesses and experts are allowed to appear before court and were heard. The accused Atanasova-Kalaidzhieva after her personal appearance before and hearing by the Bulgarian court will benefit in full of all procedural guarantees, provided for in the Bulgarian CPC. The accused will be secured full access to all files and possibility to give personal explanation, to demand hearing of witnesses, to provide other evidences, to be represented and defended by a defender of her choice, in which case the court will remove the ex-officio appointed lawyer should she have objections against him. The accused will have possibility to appeal all decisions of the court, including the issued sentence when it is not in her interest, before the Court of Appeal of the city of Sofia and then before the Supreme Cassation Court of the Republic of Bulgaria.

4.

The Court has already replied these same questions of the British authorities with a letter of 7.10.2009.”

As Mr Watson correctly observed, the Sofia City Court is saying no more to the requested state now than it vouchsafed in 2009.

Senior District Judge Riddle ordered the stay of the proceedings as an abuse of the process of the court. He explained:

“I must decide whether to stay these proceedings as an abuse of the process of the court. An earlier, and higher court, has already found bad faith and said that bad faith at any point in the process would taint the allegation. Mr Hardy has conceded, properly, that a finding of bad faith will almost always constitute a finding of abuse of process. In the admittedly unusual circumstances of this case it would nevertheless have been possible for the Bulgarian court to answer the central allegation, which is that their proceedings are tainted by the irregular original investigations. Perhaps a new, untainted, investigation has taken place. Perhaps the original “serious questions about the background” could have been answered, at the least sufficiently for current purposes. However the reality is that there is no significant difference in the factual picture presented to this court to the factual position presented in 2009. The application has been made by a judicial authority under the European Arrest Warrant scheme introduced in 2003. There is a strong presumption of confidence in our European counterparts. I have confidence in the Bulgarian Judicial Authority. I accept that the trial process itself would be fair (albeit tainted by the original investigation). Nevertheless I cannot escape from the conclusion, on the uncontroverted evidence before me that the original investigation in 2000 was tainted. It was tainted by the way this defendant was treated at the time. It was tainted by a complete failure to properly investigate the allegations against Mr Filchev. It may be that that failure is not completely irremediable. It would be possible for the Bulgarian authorities to conduct a complete fresh investigation. That investigation might, or might not, discover independent and untainted evidence against the defendant. However there have in effect been two prominent decisions, one from the High Court and the other from the European Court of Human Rights that separately and together raise the most serious questions. Those questions require an answer. None has been provided. It is not so much that the judgment of the previous court has a bearing on this decision, as that the facts remain substantially as before.”

The appellant now submits:

Mr Hardy recognised in argument that the Divisional Court has consistently acknowledged a jurisdiction to protect its process from abuse even where proceedings are taken under Part 1 of the 2003 Act. Mr Hardy submitted that the origin of the jurisdiction assumed by the High Court in 2003 Act cases is R (Bermingham & Others) v Director of the Serious Fraud Office [2007] QB 727 in which Laws LJ observed at paragraph 97:

“I should not leave the point without considering the nature of the juridical exercise involved in concluding, as I would, that the judge conducting an extradition hearing under the 2003 Act possesses a jurisdiction to hold that the prosecutor is abusing the process of the court. … The implication arises from the express provisions of the statutory regime which it is his responsibility to administer. It is justified by the imperative that the regime’s integrity must not be usurped. Where its integrity is protected by other powers, as in the Atkinson Schmidt and Gillingham cases, the implication is not justified. But under the 2003 Act that is not the case. The inference of an abuse jurisdiction – Lord Reid’s inference – follows.”

Mr Hardy’s submission is that Laws LJ’s remarks should be limited in their application to Part 2 cases since that was the nature of the case then being considered. He acknowledges, however, a continuing trend in this court to recognise the jurisdiction in the Part 1 context. At paragraph 3.5 of his skeleton argument Mr Watson has listed the very substantial number of those cases. Mr Hardy recognises that this constitution of the court will follow its practice and assume jurisdiction. Mr Hardy accordingly reserved his detailed argument to another occasion, if appropriate.

Mr Hardy argues that given the confidence ordinarily reposed by courts in the UK in proceedings of their colleagues in countries which are partners in the Framework Decision, it will only be in the most extreme of circumstances that a court in the United Kingdom would find an abuse of process in a Part 1 extradition.

The ambit of the jurisdiction was considered recently by the court in Symeou v Public Prosecutors Office, Patras, Greece [2009] EWHC 897 (Admin); [2009] 1 WLR 2384 (Laws LJ, Ouseley J) in which Ouseley J, giving the judgment of the court, said:

“33

…The focus of this implied jurisdiction is the abuse of the requested state’s duty to extradite those who are properly requested, and who are unable to raise any of the statutory bars to extradition. The residual abuse jurisdiction identified in R (Bermingham) v Director of the Serious Fraud Office [2007] QB 727 and the Tollman case [2007] 1 WLR 1157 concerns abuse of the extradition process by prosecuting authority. We emphasise those latter two words. That is the language of those cases. It is the good faith of the requesting authorities which is at issue because it is their request coupled with their perverted attempt and purpose which constitutes the abuse. If the authorities of the requesting state seek the extradition of someone for a collateral purpose, or when they know that the trial cannot succeed, they abuse the extradition processes of the requested state.

34.

The abuse jurisdiction of the requested state does not extend to considering misconduct or bad faith by the police of the requesting state in the investigation of the case or the preparation of evidence for trial.

35.

The reason for the distinction lies in the respective functions of the courts of the requested and requesting state in the European arrest warrant framework. The former are entitled to ensure that their duties and the functions under the Extradition Act 2003 Part 1 are not being abused. It is the exclusive function of the latter to try the issues relevant to the guilt or otherwise of the individual. This necessarily includes deciding what evidence is permissible, and what weight should be given to particular pieces of evidence having regard to the way in which an investigation was carried out. It is for the trial court in the requesting state to find the facts about how statements were obtained, which may go to admissibility or weight, both of which are matters for the court conducting the trial. It is the function of that court to decide whether evidence was improperly obtained and if so what the consequences of the trial are. It is for the trial judge to decide whether its own procedures have been breached.

36.

As those issues are for decision by the trial court in the requesting state, it cannot be an abuse of the extradition process of the requested state for such an issue to be shown to exist and for its resolution to be available only in the courts of the requesting state. The courts of the requested state cannot decide, let alone do so on partial and incomplete evidence, what it is for the courts of the requesting state within the European Arrest Warrant Framework (European Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender of procedures between member states … “the framework decision”) to decide about such issues and with what effect on the trial.”

In Office of the Prosecutor General of Turin v Franco Barone [2010] EWHC 3004 (Admin) Moses LJ considered an application for a stay on the grounds of abuse in the following circumstances. The defendant had been convicted of murder in his absence on 18 March 1981 in the Court of Assize in Turin. The defendant had arrived in England in 1976. On 7 November 1997 the Divisional Court [1997] EWHC (Admin) 988 found, when considering whether to permit extradition under the Extradition Act 1989, that it would not be in the interests of justice to return the defendant to Italy. The court was not satisfied as to the fairness of the proceedings in which Mr Barone had been convicted. Upon the accession of Italy to the Framework Decision a European arrest warrant was issued for Mr Barone’s extradition to Italy under the 2003 Act regime. Moses LJ noted that the mere fact that a previous request for extradition under the old regime had failed was not of itself a basis for refusing a fresh request for surrender. He continued, however, at paragraph 33:

“33.

The Deputy Prosecutor General knew full well the nature of the criticism made by the Divisional Court as to the procedure in the 1930 code and as to the evidence. Yet he has not chosen to meet either the evidential or the procedural defects which the Divisional Court identified. He merely contends that he does not have to do so.

34.

I do not agree. It is true that the new regime depends upon trust in the integrity and fairness “of each other’s judicial institutions”. But not even the expert Italian witnesses, in their uncontradicted evidence, seem to have placed any trust in the Italian criminal procedure introduced in 1930. The Deputy Prosecutor has not sought to advance any fresh evidence under the new regime as to why the courts in the United Kingdom should do so now. Moreover, the framework decision depends upon mutual respect and the stance adopted by the Italian judicial authority pays no respect, indeed, seeks to ignore the decision of the Divisional Court and of the Judicial Committee of the House of Lords, solely on the basis that under the 2003 Act courts would not now be able to adopt the approach to the evidence which the Divisional Court previously adopted. No attempt has been made to meet the views of the Divisional Court as to the defects in the evidence.”

Moses LJ concluded that the response of the Italian authorities to the ruling of the Divisional Court was to ignore it. That was itself an abuse of the process and he upheld the District Judge’s order for that reason.

Mr Hardy sought to distinguish the facts in Barone from the facts in the present appeal. He rightly points out that the extradition sought in Barone’s case was for the purpose of requiring Mr Barone to serve a sentence following an unsafe conviction. In the present case the issuing authority is seeking the return of the respondent for the purposes of continuing a trial which commenced many years ago. In our view, however, the rationale for Moses LJ’s decision was not the nature of the underlying proceedings but the absence of respect shown by the issuing authority for a previous decision of the English court. The court in Turin had failed to respond to the concerns of the Divisional Court by adducing evidence to the effect, for example, that the issues raised were capable of being reviewed and resolved by further judicial proceedings in Turin.

There are several features of this extraordinary history which causes this court great concern. The conclusions reached by the European Court upon the internal workings of the Bulgarian criminal justice system, to which we have not referred in full in this judgment, are alarming. The prosecutor is himself a judicial authority. As the European Court noted, Prosecutor General Filchev was more senior in rank to some of those magistrates and judges serving on the Judicial Council whose responsibility it was to investigate his fitness for office. There is an abundance of evidence which casts doubt about the independence of the investigative and prosecuting process from the personal will of the Prosecutor General who undoubtedly had a personal interest in it. It is not necessary for this court to make any assessment of the credibility of the evidence. An undeniable conflict arose because the Prosecutor well knew of the allegation that he had been publicly implicated in the murder of one of the alleged (and now deceased) conspirators. The fact that the Georgieva investigation file commenced with a “top secret” restriction meant that the investigation itself was secret. By the time the file was declassified, many of the witnesses at whose interviews the defence would have been entitled to attend had already provided their evidence. One legal source in Bulgaria has stated that papers are missing from the original file, an eventuality which could not be explained by “mere recklessness”. There was an abundance of evidence which would have required any competent investigator to investigate a possible link between the killings of Mr Kolev and Ms Georgieva. It is, to this court, no surprise that the Divisional Court in 2009 concluded that the prosecutor was acting in bad faith. None of the later events which we have described provides any reassurance either that the prosecution is being conducted in good faith or that a fair trial is now possible.

We have noted, with concern, the conclusion of the European Court that the underlying problem appears to have been a system of immunity for prosecutors and the centralised power of the Prosecutor General which created an institutional reluctance to pursue any investigation in the direction of a prosecutor suspected of corruption or worse. It is an unfortunate feature of the political temperature generated in part by Prosecutor General Filchev that there has been a public display of enmity and recrimination between different factions of the political and judicial systems in Bulgaria which have done nothing to reassure this court that the failings in the original investigation have any prospect of remedy. We recognise the authority of the view of this court in Symeou that allegations of bad faith in the investigation of an offence and prosecution of a suspect are ordinarily matters for the court in the requesting state about which the requested court will make no examination. Confidence will be reposed in the independent judiciary of a party to the Framework Decision to make an Article 6 compliant inquiry into the matters raised. We fully expect that the facts of this case are wholly exceptional. A finding of bad faith has already been made by the Divisional Court for reasons which were fully expressed. We consider that the Sofia City Court owed to the United Kingdom a mutual obligation of respect. Had this court received any meaningful recognition by the issuing authority of the court’s concerns in 2009 it might have been in a position to repose some confidence in the good faith of the present request. The Sofia Court cannot have been under any misunderstanding as to this court’s concerns and the need to respond to them. We do not consider that this is a case in which the abuse argument strays outside its permissible ambit. We are not persuaded that the Senior District Judge had any better reason to accept the good faith of this prosecution than did the Divisional Court in 2009. We accept that this latest request was an abuse of the process of the court. For this reason we dismiss the appeal.