Georgiev, R (on the application of) v Sofia Prosecutor's Office & Supreme Cassation Prosecutor's Office Bulgaria

MR JUSTICE WILKIE: Tihomir Georgiev appeals against the decision of the Deputy Senior Judge Wickham of 13 September of this year, ordering his extradition to Bulgaria in respect of two European arrest warrants; the first in respect of two convictions, one for murder and for an offence, effectively, of grievous bodily harm; the second, an accusation warrant, alleging five offences, the first, participation in organised crime; distributing controlled drugs, the second and third in respect of robbery, the fourth, a low level assault, and the fifth, effectively, kidnap or false imprisonment.

The appellant resists extradition on human rights grounds, pursuant to Section 21 of the Extradition Act 2003 under Article 2, Article 3 and Article 6. In respect of Article 2, it is said that should he be extradited, there is a near certainty, alternatively a real risk, that his right to life under Article 2 will be violated by the authorities, or that the state will fail to prevent his right to life being violated by non-state actors in that country. Under Article 3 it is said that if he were extradited, there is a real risk of his right to freedom from torture, inhuman and degrading treatment or punishment under Article 3 will be violated by the authorities in Bulgaria, alternatively that they will fail to prevent his Article 3 rights from being violated by non-state actors in that country. Under Article 6, it is said that should he be extradited, there is a real risk that he will suffer flagrant denial of his right to a fair trial in respect of the accusation warrant offences. It is contended that the Deputy Senior District Judge ought to have decided the question whether his extradition would be compatible with his Article 2, 3 or 6 rights differently. Had she done so, she would have been required to order his discharge. The details of the two warrants are as follows.

The conviction warrant was issued by the Sofia City Prosecutor's Office on 15 November 2011, in respect of service of two sentences, for 15 years for a murder committed on 15 June 2007, and a consecutive sentence of two years in respect of the assault committed on 3 May 2005. Those sentences were imposed on 25 July 2011 and 1 October 2010 respectively.

The accusation warrant was issued was issued by the Supreme Cassation Prosecutor's Office on 21 January 2012, in respect of five offences. The offence of being participating in an organised criminal group, established to distribute drugs, arises between dates in August 2009 until 26 May 2010. The maximum sentence for that offence is 10 years imprisonment. Two robberies are similarly said to have been committed in execution of a decision of the same organised crime group on 1 December 2009 and 7 December 2009 respectively, for each the maximum sentence is 15 years imprisonment. The offence of minor assault is similarly said to have been committed in the execution of a decision of the same organised crime group, and was allegedly committed on 2 December 2009, with a maximum of three years imprisonment. The offence of kidnap or false imprisonment by allegedly using force and a threat to coerce a person to get into a vehicle and to be transported in it, was said to have been committed on 7 December 2009, and carries a maximum sentence of six years imprisonment.

The appellant had left Bulgaria on 22 July 2011, a few days prior to the passing of the sentence in respect of the murder. He travelled through various European countries, according to his proof of evidence; Greece, Spain, Morocco, France and Germany, eventually arriving in the United Kingdom, where he was arrested on 20 January 2012. Before the District Judge, evidence was given by the appellant, by the appellant's wife, Mrs Boryana Georgiev, and by a Mr Jordan Tonchev. Each of them gave evidence in the form of a witness statement, but each of them attended court, in the case of the latter two witnesses, coming from Bulgaria to do so. They gave evidence orally and it was subject to cross-examination. Culled from his witness statement and his oral evidence, and summarised in his counsel's skeleton argument, the factual background may be relatively briefly described as follows.

The appellant accepts that he worked as personal security guard initially for a man named Martin Stankov, whose business rather coyly is described as "not exclusively legitimate". Thereafter he worked for a competitor. He was arrested after his move to that competitor on three separate occasions. The first was on 4 November 2007 by the special forces unit of the Sofia police on the murder charge. He alleges that he was subjected to a series of instances of ill-treatment at the time of his arrest in his flat, when his wife was also present in the flat, but also after he had been removed from the flat, on his way to a police station, and thereafter at the police station. He was beaten, including with electronic batons, he was strangled, suffocated and at one point dragged naked along the road behind a car for about 30 or 40 metres. He sustained burns to his testicles, received a scar on his forehead, a hernia and a head injury. He refused, however, to admit the charge of murder and he stood trial, at the end of which, on 24 November 2008, he was acquitted and released.

Under Bulgarian law, the prosecution is permitted to appeal such an acquittal, and it did so before the Bulgarian Court of Appeal. The appeal was successful, the acquittal was overturned. He was then convicted of murder and was sentenced to 18 years imprisonment.

The appellant then appealed that decision of the Court of Appeal to the Court of Cassation. That appeal was successful. His conviction was overturned, but the case was remitted to the Court of Appeal for a further trial. The Court of Appeal found him guilty on the re-trial. His second appeal to the Court of Cassation was unsuccessful. It would appear, however, that at some point in the legal process, either before the Court of Appeal on the second time, or the Court of Cassation, that the sentence which was imposed of 18 years was reduced to one of 15 years.

Whilst those processes were going on, and whilst he was free following the initial acquittal, he was arrested on a second occasion in January 2009 by the special forces unit of the Sofia police. Again, he alleges ill-treatment by the police, with a view to compelling him to give false witness testimony against a man known as Zlotamak in respect of drugs offences. He says that the police beat him, subjected him to torture to compel him to give false evidence, and in fact he did make a statement, which he says is false, as a result of coercion through threats of violence to his family. Having done so, he then persuaded the authorities to relocate himself and his family, under a witness protection program, and he moved from Sofia to another town. However, he says that in June 2009, one of the guards who were protecting him and his family drove him and his daughter into a forest. The appellant suspected that he was about to be killed and took avoiding action by threatening the driver, and thereafter exiting from the witness protection program and returning to Sofia at the end of 2009.

The third arrest took place on 7 January 2010, where the special terrorist squad was involved. He was arrested in connection with the matters which have resulted in the accusation warrant. Again, he alleges that whilst in custody with the police, he was physically assaulted, kicked, spat at, electrocuted and tortured under direction apparently from superior officers. He lost consciousness, receiving marks to his legs, testicles and upper body. In respect of this arrest and ill-treatment, Mr Tonchev had given evidence of seeing the physical signs of such ill-treatment, when he was eventually in custody under the care of the prison service. He remained in custody for a period of a year.

The appellant alleges that the ill-treatment on that occasion was in order to force him to sign a confession that he was involved as a right-hand man to a Mr Marjina, who is said to be the head of the organised crime group involved in those alleged offences. He signed this confession, he says, as a result of coercion through torture, and it forms the basis of the evidence against him in relation to the accusation warrants. Eventually he was released from custody and was free in July 2011, when according to his witness statement, he was told that the decision of the Court of Cassation in relation to his final appeal in respect of the murder was about to be delivered, and that he should expect the conviction to be upheld, and that he would thereupon immediately start a prison sentence.

On 20 July 2011 he was told by a friend that they were going to arrest him, take him to prison, that the plan was to kill him on the way to prison, ostensibly for resisting arrest. He was advised to leave the country immediately, which he did on 22 July, some three days before the decision of the court, to which I have referred.

The judicial authority responded to the allegations made by the appellant in two documents, both of which were before the District Judge. The first was dated 29 March 2012 and the second was dated 3 September 2012. The first of these letters consists of a detailed account of the various offences covered by the conviction and accusation warrants. It also consists of a response to the allegations made by the appellant, and, suffice it to say, that in respect of the allegations of ill-treatment, it amounts to a blanket denial that any untoward treatment was meted out to the appellant. It also gives details of the ways in which, both internationally and domestically, they say that their arrangements comply with the various international obligations, and in particular the European Convention on Human Rights. They include descriptions of how the conduct of their prison system is regulated. The District Judge, having been in receipt of that material and the evidence to which I have referred, in her decision, summarised the evidence of the various witnesses, including the evidence of Mr Tonchev. She made a series of findings of fact, which she set out at paragraph 15 of her judgment. They were as follows:

She also made a comment, which derived from a lengthy passage in his witness statement where he makes broad ranging criticisms of the Bulgarian political, judicial and security systems, implicating specifically the present prime minister, Mr Borisov, and the fact that his wife has gone public in Bulgaria in public forums on the subject. The District Judge said this at paragraph 18:

Based upon these findings of fact, the conclusion to which the District Judge then came is set out in paragraph 19 of her decision in the following terms:

I now turn to the relevant law. The appeal is brought under Section 26 of the Extradition Act 2003. The court may either allow or dismiss the appeal. It may allow it only if, amongst other things, its conclusion is that the judge ought to have decided a question before her at the extradition hearing differently, and if she had decided the question the way she ought to have done, she would have been required to order the person's discharge. The relevant provision in the 2003 Act is Section 21 which provides:

Article 2 provides that everyone's right to life shall be protected by law, and Article 3 provides that no one shall be subjected to torture or inhuman or degrading treatment or punishment. The approach of the courts in determining whether there has been non-compliance with, or breach of, either of these articles is that the threshold is high. Lord Bingham in Crown v Special Adjudicator ex parte Ullah 2004 UK HL 26 said at paragraph 24:

The question whether Article 2 requires a higher level of test to be satisfied than Article 3, remains undecided as a matter of binding authority on this court, although in McLean 2008, EWHC 547 Admin, this court indicated that on the facts of that case, the same test of real risk should be the applied in relation to Article 2 as in relation to Article 3.

In my judgment, that particular distinction makes no difference in my conclusion on this case. Suffice it to say that Lord Bingham, in so far as he was identifying the test under Article 3, used the same expression of the test as in the case of Soering 1989, 11 EHRR 439 at paragraph 91, where the European Court of Human Rights said as follows:

As far as the threat is said to emanate not from state but from non-state agents, the approach of the courts, whether in this jurisdiction or the European Court of Human Rights, is effectively the same in HLR v France 1997, 26 EHRR 29, paragraph 40, the court said:

Within the United Kingdom jurisdiction, in the case of Bagdanavicius [2005] UKHL 38, Lord Brown at paragraph 24 of his speech stated:

The law in relation to Article 6 is somewhat differently nuanced. Article 6 establishes the right to a fair trial. The way that it has been described in the authorities has been in respect of the risk of suffering a flagrant denial of his rights in the receiving state. That much is derived from paragraph 234 in the case of Ullah, already referred to. It is recognised that the threshold is a high one, because there is a strong public interest in honouring extradition treaties. This much was recognised by the European Court in Soering at paragraph 89, where it said as follows:

In the case of Othman v United Kingdom (2012) 55 EHRR 1, in relation to article 6 the court said at paragraphs 258 to 260:

The role of the courts in this country, investigating the trial process in the receiving country, is one which has been considered by this court in R (on the application of Sobczak) vs Judicial Authority in Poland [2011] EWHC 284, where Lord Justice Toulson said:

In the case of Symeou v Public Prosecutor's Office at the Court of Appeals, Patras, Greece [2009] 1 WLR 2384, the Divisional Court said at paragraph 66:

In the present case, Bulgaria became a member of the European Union, and therefore a party to the framework decision in 2007. It became a member of the European Convention on Human Rights mechanism for counsel of Europe in 1993.

The grounds of appeal are described as follows. Firstly, that the District Judge was in error in her judgment, in that having made the findings of fact that she did about the arrests in 2007 and 2010, she should have decided the case differently. Having made a finding of fact that the police behaviour was violent, and that the officers' conduct towards his wife and young child was wholly inappropriate, having regard to the severity of the conduct alleged by the appellant and his wife, she should have decided that there was a breach thereby of Article 3. It is said that against that background, and that in the light of the blanket denial by the judicial authority in its letters to the court that anything untoward had happened, she should have recognised both a level of indifference to such inappropriate behaviour and/or a willingness or inability to contain any such behaviour to any particular organ of the state, that it was dangerous for her to reason that because the appellant will not be returning to police custody, but will be returning to serve a sentence of imprisonment and to await trial whilst in prison, that she was able properly to dismiss the contention that there was a real risk of a breach of Article 3 and/or Article 2.

If on no other basis it is pointed out that initially when he is returned, it is likely that he will be detained by the police for onward transportation from the airport to the prison, so that at least to that extent he will be in the hands of a state body, in respect of which the District Judge has found to her satisfaction that there was violent and inappropriate conduct, in the form of the police putting a gun on the appellant's daughter's tummy when arresting him, and having beaten him in the bathroom of their flat whilst naked, including the application of electric shocks.

In support of this contention, it is pointed out that there has been a series of decisions by the European Court of Human Rights brought by Bulgarian citizens against the state of Bulgaria, which have been found proved, involving breaches of Article 2 and/or Article 3, and involving inhuman, degrading ill-treatment and/or torture, or a failure properly to investigate such allegations. In addition, my attention has been drawn to a number of official and authoritative, and unofficial but nonetheless authoritative and objective reports, in which concerns are expressed about the conduct of the police in Bulgaria, particularly in the context of a drive against organised crime, and the further concern about official indifference to such allegations, or willingness to defend the police against the evidence in respect of such allegations.

As for the claim in respect of Article 6, it is said that the District Judge erred against the background of the specific facts of this case, and more general expressions of concern, to which I will return in a moment, in failing to find that there was a real risk of a flagrant denial of the right to a fair trial. I am urged to come to that conclusion against the whole of the background involving the allegations of ill-treatment, as well as the fact that, though acquitted on one occasion, and although a successful appeal occurred against a conviction on another occasion when the appeal went to the highest level of the court in Bulgaria, at the end of the process there was a conviction which was upheld on appeal, against someone who it is said was so central to events involving organised criminality, which approached, if did not directly touch upon, very senior members of the state hierarchy and government, that the inference should be drawn that those convictions were effectively flawed, because the courts convicting him or confirming the conviction were susceptible to influence, and thereby he was denied a fair trial.

I first turn to the Article 2 point. Other than what the appellant has said in his witness statement, there is no evidence to support the contention that he was told that he would be killed. The District Judge had the opportunity not only to read to that evidence, but to see the appellant giving his evidence and to be subject to cross-examination. Of course, she was entitled to bear in mind the fact that, although somewhat coy about it, he is a self-confessed person involved in serious organised crime, who is desperate to maintain his freedom in the United Kingdom, and not to return to Bulgaria to serve a lengthy prison sentence to which he is already subject, and to face serious allegations in respect of other alleged criminal activity. In my judgment, it is simply not possible for this court to conclude that the District Judge was wrong in her assessment of the reliability of his evidence, and wrong to conclude that she should only act on it, if it were corroborated by some third party source. In my judgment therefore, there was no and is no evidence of a credible nature which would support the Article 2 contention.

As for Article 3, in my judgment the District Judge by her findings in respect of the 2007 and the 2010 arrests, did find a level of violence which was capable of engaging Article 3. Plainly, there is, in the case law and in the objective material, evidence of past and present grounds for concern about the conduct of the police and the indifference of the authorities. However, in my judgment that evidence falls a long way short of establishing a case that no one, whatever their individual circumstances, should be extradited to Bulgaria, because there is a well documented and systemic failure to observe Article 3 or to investigate apparent breaches of Article 3. It therefore follows that I must consider this case not on the basis of the generality of the picture which is revealed, but on the particular facts of this case.

The evidence which was before the District Judge was of different standards and modes of behaviour adopted by the police on the one hand, and by the prison authorities on the other hand. The material placed before the District Judge by the judicial authority went into considerable detail about the structures established to protect the interests of those who are detained in custody. The evidence given on behalf of the appellant by Mr Tonchev about the standards and practices, at any rate in the prison which he worked, was consistent with that general picture. That is that during the year when this appellant was incarcerated, other than a single incident which seems to have involved a personal disagreement with a cell mate which was quickly resolved by removing him from that cell, there was no instance which possibly be described as ill-treatment.

In my judgment, the District Judge was entitled, against the background of that evidence, and considering the fact that she was being asked to extradite for the purpose initially of serving a sentence of imprisonment and also awaiting trial in custody, to conclude that whatever may or may not have been the position of the police's treatment of the appellant in the relatively recent past, he would not be at any real risk of a breach of Article 3 when in custody serving the sentence or awaiting trial. Similarly, in my judgment, it is inconsistent to suggest that other than by collusion, the state authorities in Bulgaria are incapable of protecting someone from the attacks of non-state agents.

In my judgment, the highlight of the appellant's case is that they say there is a real risk that the police, meeting him at the airport, tasked with conveying him to the prison against the background of him being a high profile person, whose case in this country, and whose wife in Bulgaria, has been conducted on the basis of making high profile complaints about his fears of the way that he would be treated by the state, taking, apparently, its direction from the very top of the political hierarchy. The suggestion that the police would take the risk or be so flagrant as to maltreat him or even do away with him during that journey, is so fanciful that it doesn't begin to satisfy the requirements of a real risk. Accordingly, in my judgment the District Judge did note err in the conclusion to which she came under Article 2 and Article 3.

As far as Article 6 is concerned, it is right to say that there are expressions of concern in a series official and authoritative reports, some of them current, about the independence of the judiciary. That concern is expressed in connection with the process by which they are appointed, some apparently not by merit but by virtue of influence by those in the political world and elsewhere. Concerns are also expressed about the extent to which judges who may assert their independence too vocally may have had disciplinary machinery improperly used against them. Concerns are expressed that there is and remains a worry about corruption and/or a willingness in the judiciary not to rigorously apply the law in certain cases. Those general expressions of concern fall a long way short of what would be necessary for this court to say that the system is so flawed that, inevitably, there must be a real risk of a flagrant denial of a fair trial for anyone who is extradited to Bulgaria. This much is emphasised by the passage in Othman to which I have referred. That being the case, one has to look for what there may be in the particular circumstances of this case to see if there is evidence which would support the contention in respect of Article 6.

As I have explained, the judicial system in Bulgaria permits the prosecution to appeal against acquittals, and it is apparent that in this case, there were such appeals. But it remains the case that at first instance after trial, the appellant was acquitted. After there had been a conviction by the Court of Appeal, he succeeded at the highest level in the Bulgarian court system, in having that conviction set aside and remitted to the Court of Appeal for a re-trial. Furthermore, throughout the judicial process, it is apparent that he was legally represented, and the sentence which was imposed eventually of 15 years was one which was less than that which had been imposed at one stage at of 18 years, where there was obviously an error which was corrected. In my judgment, there is nothing in that history to suggest that there is any real risk of a flagrant denial of a fair trial.

In any event, as I have indicated, it is not, save in wholly exceptional circumstances, appropriate for this court in this jurisdiction to investigate the judicial processes in Bulgaria, which is a member of the European Union, a party to the framework decision, given the high importance of reflecting mutual trust and confidence which is implicit in that whole system.

I therefore conclude that the District Judge did note err in failing to find non-compliance with Article 6, and therefore attractively though Mr Hawkes has put his submissions before me, this appeal has to be dismissed.

MR HAWKES: My Lord, the appellant is legally aided. May I ask for the usual assessments?

MR JUSTICE WILKIE: Yes, certainly.

MR HAWKES: I'm very grateful.

MR JUSTICE WILKIE: Yes, thank you both very much.