Kirchanov & Ors v District Prosecutor's Office, Blagoevgrad, Bulgaria & Ors

This is the judgment of the court to which we have both contributed. The three appeals before the court concern the conditions in which prisoners may be held in Bulgarian Prisons following their extradition from the United Kingdom to Bulgaria pursuant to European Arrest Warrants (“EAWs”).

The surrender of Mr. Metodi Kirchanov in extradition proceedings is requested by the District Prosecutor’s Office, Blagoevgrad, Bulgaria by ab EAW, to serve a 5 year sentence imposed for sexual offences. The EAW was issued on 18 December 2014 and certified by the National Crime Agency (“NCA”) 20 January 2015.

The surrender of Mr. Ivaylo Petrov is requested by the District Prosecutor’s Office, Montana, Bulgaria by an EAW to serve a three year sentence imposed for two offences, one of participating in an organised criminal group and one of possession of drugs with intent to supply. The EAW was issued on 11 November 2015 and certified by the NCA on 23 November 2015.

The surrender of Mr. Stanimir Ivanov is requested by the District Prosecutor’s Office, Pleven, Bulgaria by an EAW to serve a 2 year service imposed for a sexual assault. The EAW was issued on 20 April 2015 and certified by the NCA on 22 May 2015.

These three cases had been consolidated before the Westminster Magistrates’ Court with those of four other persons whose extradition to Bulgaria was sought (Mr. Kosta Demirov, Mr. Ilian Dimitrov, Mr. Lachezar Georgiev and Mr. Anton Zdravkov).

On 5 August 2016 District Judge (MC) Ikram ordered the extradition to Bulgaria of all seven requested persons. In those proceedings the District Judge was referred to the judgment of this court in Vasilev v Regional Prosecutor’s Office, Silestria, Bulgaria and others [2016] EWHC 1401 (Admin), Burnett LJ and Mitting J, 14 April 2016 where this court concluded that, were it not for the guarantee provided by the Bulgarian Ministry of Justice relating to the conditions in which the requested persons would be detained, neither of the appellants could have been surrendered. But for the assurances given by the Bulgarian Government the rights of the requested persons under Article 3 ECHR would have been at real risk of being breached. Had the assurance not applied to the requested persons the appeals would have been allowed and their discharge ordered. In his judgment of 5 August 2016 District Judge Ikram stated that it was accepted on behalf of Bulgaria that male prison conditions in Bulgaria crossed the Article 3 threshold, that Bulgaria did not seek in those proceedings to adduce concrete evidence that the situation had improved so as to reach an Article 3 compliant level across the prison estate and that accordingly Bulgaria acknowledged that it must offer case-specific assurances. Accordingly the Judicial Authorities sought to discharge the burden on them by way of specific assurances of Article 3 compliant treatment. District Judge Ikram was satisfied that the assurance given by the Deputy Minister of Justice dated 1 December 2015 would ensure that the requested persons would be kept in prison conditions such that there would no longer be a real risk of breach of their Article 3 rights. In this regard he noted the observation at paragraph 50 of the judgment in Vasilev that the members of this court considered it inconceivable that the appellants in that case could be housed in the near future at Sofia, Burgas or Varna Prisons. On that basis the District Judge rejected the submissions of each of the requested persons that his extradition to Bulgaria would infringe his Article 3 rights.

All seven appellants were granted to leave to appeal by Sir Stephen Silber on the ground that there is a real risk that the assurance issued by the Bulgarian Ministry of Justice will be breached resulting in an infringement of their Article 3 rights. By order dated 13 December 2016, Cranston J. ordered that the cases of these three appellants be listed to be heard together in order to deal with that issue. All three appellants submit that, following the extradition of Mr. Vasilev, it has become clear that he (and likely others) have been held in conditions of detention which breach the assurances given to the court in Vasilev. and that there is a real risk that the assurance issued by the Bulgarian Ministry of Justice will be breached resulting in an infringement of their Article 3 rights. Mr. Petrov also seeks to renew his application for permission to appeal on the following grounds:

Mr. Ivanov seeks to renew his application for permission to appeal on the following grounds:

Section 26 of the 2003 Act provides:

“26 Appeal against extradition order

“(1)

If the appropriate judge orders a person's extradition under this Part, the person may appeal to the High Court against the order.

“(2)

But subsection (1) does not apply if the order is made under section 46 or 48.

An appeal under this section—

may be brought on a question of law or fact, but

lies only with the leave of the High Court.

“(4)

Notice of application for leave to appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is 7 days starting with the day on which the order is made.

“(5)

But where a person gives notice of application for leave to appeal after the end of the permitted period, the High Court must not for that reason refuse to entertain the application if the person did everything reasonably possible to ensure that the notice was given as soon as it could be given.”

Article 3 ECHR provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Section 21 of the 2003 Act provides in relevant part:

“21 Person unlawfully at large: human rights

“(1)

If the judge is required to proceed under this section (by virtue of section 20) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c.42).

“(2)

If the judge decides the question in subsection (1) in the negative he must order the person's discharge.

“(3)

If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued.”

There is a great deal of common ground between the parties as to the application and requirements of Article 3 ECHR in this context. It is necessary for the appellants to show strong grounds for believing that if returned, they face a real risk of being subjected to torture or inhuman or degrading treatment or punishment.

“While the Strasbourg jurisprudence does not preclude reliance on Articles other than Article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to Article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment: Soering para 91; Cruz Varas para 69; Vilvarajah para 103.” (R(Ullah) v Special Adjudicator [2004] UKHR; [2004] 2 AC 323, per Lord Bingham at [24]

The appellants accept that the ill-treatment must attain a minimum level of severity in order to offend Article 3. They submit that the threshold for this minimum level is relative and depends on all the circumstances of the case such as duration of the treatment, its physical and mental affects and in some cases, the sex, age and state of health of the victim.

It was common ground before us that member states of the EU are presumed to fulfil their international obligations under ECHR and under the EU Charter and that such a presumption is not easily displaced.

With regard to the application of Article 3 in cases of prison conditions and overcrowding the Judicial Authorities accept the following:

In Vasilev the requesting Judicial Authority expressly accepted for the purposes of that 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 as a result of the conditions in which they might be required to serve their sentence of imprisonment. That is also the position on this appeal. The issue which arises here is whether, as a consequence of such breaches as the appellants are able to establish, this court cannot have confidence in the continued operation of the assurances. In these circumstances it is not necessary to refer in great detail to the considerable volume of material placed before us as to the conditions prevailing in Bulgarian prisons. It is necessary, however, as in Vasilev, to say something of those conditions in order to permit assessment of the adequacy and reliability of the assurances which have been given.

In Vasilev v Bulgaria, Mitting J. explained:

“10.

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 2016. 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 & 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.” (at [10])

Mitting J. analysed the information in Appendix 1 of the response of the Bulgarian Government to the CPT report dated 12 November 2015, in relation to overcrowding. Although the statistics suggested that the prison population was comfortably below the rated capacity of the prison estate, this had not prevented serious overcrowding in the closed sections of some prisons, most notably Sofia, Burgas and Varna. Moreover, there was also clear evidence of other grave deficiencies in particular very poor material conditions, lack of access to lavatory facilities, inadequate ventilation, heating and access to daylight, and poor hygiene.

The CPT Public Statement concerning Bulgaria published on 26 March 2015 was an unusual step. The CPT recorded that during its ten visits to Bulgaria since 1995 major shortcomings had been identified. The CPT had many times drawn to the Bulgarian authorities’ attention that under the Convention establishing the CPT it was required to take decisive action to improve the situation. The vast majority of these recommendations had remained unimplemented or only partially implemented. In the course of the CPT visits to Bulgaria in 2010, 2012, 2014 and 2015 the delegations witnessed a lack of decisive action by the authorities leading to a steady deterioration in the situation of persons deprived of their liberty. In its report on its 2012 visit the CPT expressed its extreme concern about the lack of progress and stressed that this could lead the CPT to consider having recourse to Article 10(2). That procedure was set in motion after the 2014 visit when the CPT found a persistent failure by the Bulgarian authorities to address fundamental shortcomings including ill-treatment, inter-prisoner violence, prison overcrowding, poor material conditions of detention and inadequate prison healthcare services. The 2015 visit had established that little or no progress had been achieved in the implementation of key recommendations repeatedly made by the CPT. Accordingly the CPT had been left with no other choice but to make a Public Statement pursuant to Article 10(2).

The CPT 2015 Public Statement included the following passage relating to overcrowding and material conditions:

“Paragraph 12. Overcrowding remains a very problematic issue in the Bulgarian prison system. For example, at Burgas Prison, the vast majority of inmates had less than 2 square metres of living space in multi-occupancy cells, with a notable exception of the remand section. The situation at Sofia Prison remains similar to that observed in the past, with most inmates having just a little more than 2 square metres of living space per person.

The material conditions at Sofia, Burgas and Varna Prisons remain characterised by an ever-worsening state of dilapidation. In particular, most of the sanitary facilities in these three prisons were totally decrepit and unhygienic, and the heating systems functioned for only a few hours per day. The majority of prisoners still did not benefit from ready access to a toilet during the night and had to resort to buckets or bottles to comply with the need of nature. The kitchens at Burgas and Varna Prisons (and the dining hall at Varna Prison) remained filthy and unhygienic and infested with vermin, with leaking and over-flowing sewage pipes, and walls and ceilings covered in mould. Most parts of the establishments visited were unfit for human accommodation and represented a serious health risk for both inmates and staff. To sum up, in the Committee’s view, the material conditions alone in the three prisons visited could be seen as amounting to inhuman and degrading treatment.”

The CPT Public Statement of 2015 concluded:

“17.

In its previous reports the Committee has taken due note of the repeated assurances given by the Bulgarian Authorities that action would be taken to improve the situation of persons placed in the custody of the police, or held in establishments under the responsibility of the Ministry of Justice. However, the findings of the 2015 visit demonstrate again that little or nothing has been done as regards all the above-mentioned long standing problems. This state of affairs highlights a persistent failure by the Bulgarian Authorities to address most of the fundamental shortcomings in the treatment and conditions of detention of persons deprived of their liberty, despite the specific recommendations repeatedly made by the Committee. The CPT is of the view that action in this respect is long overdue and that the approach to the whole issue of deprivation of liberty in Bulgaria should radically change.”

In its pilot judgment in Neshkov, delivered on 27 January 2015, the Strasbourg Court drew the following conclusions:

“268…While the breaches in these cases and in the present case related to various detention facilities, the underlying facts were very similar. The most reoccurring issues were lack of sufficient living space, unjustified restrictions on access to natural light and air, poor hygiene, and lack of privacy and personal dignity when using sanitary facilities. The breaches were therefore not prompted by isolated incidents or the particular turn of events in each individual case; they originated in a widespread problem resulting from a malfunctioning of the Bulgarian penitentiary system and insufficient safeguards against treatment incompatible with Article 3…

272.

The systemic problem underlying the breach of Article 3 of the Convention found in this case is of considerable magnitude and complexity. It does not stem from a particular legal provision or single other cause but from a plethora of factors. Some of these, such as the insufficient capacity of Bulgarian correctional facilities and their obsolescence and poor state of repair, may chiefly be attributed to the protracted lack of investment by the authorities in the penitentiary system’s facilities. Others, such as the lack of ready access to the toilet for inmates at night, appear to be due to the physical characteristics of the correctional facilities, the inmate management practices followed in them, and perhaps an insufficient number of guards.”

Neither in Vasilev nor in the present case have the Bulgarian Judicial Authorities sought to dispute the thrust of these findings, although the point is made in both cases that the problems are being addressed and conditions are improving. Against this background, it is readily apparent that, as matters stand, extradition of prisoners to serve terms of imprisonment in Bulgarian Prisons will be compatible with Article 3 ECHR only if effective and reliable assurances are given as to the conditions in which they will be held.

The European Court of Human Rights has considered the position of assurances given by a contracting state in Othman v United Kingdom (2012) EHRR 1. Such assurances are a further relevant factor in deciding whether return of an individual would involve a breach of Article 3 ECHR. The existence of assurances is not of itself enough to ensure adequate protection against the risk of ill-treatment and a national court is obliged to examine whether the assurances will, in their practical application, provide a sufficient guarantee that the person concerned will be protected against ill-treatment. The European Court of Human Rights identified a number of factors relevant to that assessment: see generally, paragraphs 187 to 189 of the judgment.

The approach of the national court to assurances is summarised by the decision of the Divisional Court in Sunca v Iasi Court of Law and others [2016] EWHC 2786 (Admin.) in the following terms at paragraph 52:

“52 We accept that the factors which Mitting J identified in BB v. Secretary of State for the Home Department , SC/39/2005, and approved by the Court of Appeal, are those for evaluating the assurance in this case. Mitting J said:

"Without attempting to lay down rules which must apply in every case, we believe that four conditions must, in general, be satisfied.

(i)

the terms of assurances must be such that, if they are fulfilled, the person returned will not be subjected to treatment contrary to Article 3 ;

(ii)

the assurances must be given in good faith;

(iii)

there must be a sound objective basis for believing that the assurances will be fulfilled;

(iv)

fulfilment of the assurances must be capable of being verified."

Mitting J's analysis is consistent with the Strasbourg jurisprudence; Othman v. United Kingdom , application no 8139/09, (2012) 55 EHRR 1, [189].

The position in relation to Bulgaria was specifically considered by the Divisional Court in Vasilev v Regional Prosecutor’s Office, Silistra, BulgariA and others [2016] EWHC 1401 (Admin). The Divisional Court observed that it was accepted that the prison conditions in Bulgaria were such that there is a real risk that a person surrendered to that country would be subjected to inhuman or degrading treatment by reason of the conditions in which they might be required to serve their sentence. The Bulgarian authorities had, however, provided assurances as to the treatment that would be accorded to persons surrendered to them. The assurances had evolved over time and were, in their final form, contained in a declaration made by the then Deputy Minister of Justice on 7 September 2015. The assurances were in the following terms:

“i.

“In connection to the required guarantees on the accommodation conditions for individuals wanted by the Republic of Bulgaria based on a European arrest warrant after their possible surrender to the Bulgarian judicial authorities, the Ministry of Justice hereby declares that in such cases the surrender of individuals will be allocated to penitentiary establishments that provide accommodation conditions in compliance with Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms , as well as with the minimum European standards. That way, the individuals will be accommodated in prisons and prison dormitories that are in line with the minimum European standards. The sleeping places that will house the surrendered individuals shall provide a total of 4 sq. m. per individual, direct access to daylight, a possibility for natural ventilation, and an individual toilet. The amount of daylight, the degree of artificial lighting, hearing and ventilation shall be determined according to the requirements of the respective national standards for public buildings.

ii.

The obligation to provide accommodation for the abovementioned individuals in penitentiary establishments under the conditions, set out in Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms , is set out in Order JIC-04–1163 by the Minister of Justice, dated August 13, 2015.

iii.

This declaration is applicable to cases where the respective competent body in the country executing the European arrest warrant has made an explicit request for the provision of guarantees in relation to the accommodation of said individual under conditions that fit the minimum European standards.”

The Divisional Court considered whether those assurances were reliable. For the reasons given in their judgment, the Divisional Court was satisfied that the presumption that Bulgaria, as a Member State of the European Union, would honour its assurances had not been displaced. They therefore ordered the return of Mr Vasilev to Bulgaria.

The Divisional Court noted that the assurances made no mention of violence by staff, corruption within the prison system and access to medical care. The Divisional Court held that the risk of violence was most acute at three prisons, Sofia, Burgas and Varna, and that it was inconceivable that prisoners would be housed in one of those three prisons. The Divisional Court held that assurances were not necessary in relation to other prisons, or in relation to matters of corruption and understaffed medical care as the evidence did not establish that a real risk of a breach of Article 3 ECHR or Article 4 of the Charter had been made out. (See, generally, paragraphs 49 to 50 of the judgment).

The surrender of persons to another Member State of the European Union is governed by the Council Framework Decision of 13 June 2002 (“the Framework Decision”). As explained by the Divisional Court in Puceviciene v Lithuanian Judicial Authority, Andreas Cornas v German Judicial Authority and Savov v Czech Judicial Authority [2016] EWHC 1862 (Admin.) at paragraph 4, the Framework Decision has the status of a Directive, the 2003 Act is subject to the principle of seeking to interpret it in conformity with EU law and decisions made in the United Kingdom in relation to EAWs are subject to the jurisdiction of the Court of Justice of the European Union. The most recent decision setting out the approach of the Court of Justice to the operation of the Framework Decision is that in Joined Cases C-404/15 and C-659/15/PPU Criminal Proceedings Aranyosi and Caldarau [2016] Q.B. 921 (“Aranyosi”).

Article 4 of the Charter of Fundamental Human Rights of the European Union is headed “Prohibition of torture and inhuman or degrading treatment” and provides that “No one shall be subject to torture or inhuman or degrading treatment or punishment”.

The principles governing the application of Article 4 of the Charter in this field are set out by the Court of Justice in Aranyosi. Compliance with Article 4 is binding on the Member States, and their courts, where they are implementing EU law, as they are in the case of decisions taken by the relevant judicial authorities when applying the provisions of national law transposing the Framework Decision: see paragraph 84 of Aranyosi. The approach to be adopted appears from the following paragraphs of the Couirt of Justice:

“88 It follows that, where the judicial authority of the executing member state is in possession of evidence of a real risk of inhuman or degrading treatment of individuals detained in the issuing member state, having regard to the standard of protection of fundamental rights guaranteed by EU law and, in particular, by article 4 of the Charter (see Melloni’s case [2013] QB 1067 , paras 59 and 63 and Opinion 2/13 [2015] All ER (EC) 463, point 192), that judicial authority is bound to assess the existence of that risk when it is called upon to decide on the surrender to the authorities of the issuing member state of the individual sought by a European arrest warrant. The consequence of the execution of such a warrant must not be that that individual suffers inhuman or degrading treatment.

“89 To that end, the executing judicial authority must, initially, rely on information that is objective, reliable, specific and properly updated on the detention conditions prevailing in the issuing member state and that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention. That information may be obtained from, inter alia, judgments of international courts, such as judgments of the Court of Human Rights, judgments of courts of the issuing member state, and also decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the UN.

“90 In that regard, it follows from the case law of the Court of Human Rights that article 3 of the Convention imposes, on the authorities of the state on whose territory an individual is detained, a positive obligation to ensure that any prisoner is detained in conditions which guarantee respect for human dignity, that the way in which detention is enforced does not cause the individual concerned distress or hardship of an intensity exceeding the unavoidable level of suffering that is inherent in detention and that, having regard to the practical requirements of imprisonment, the health and well-being of the prisoner are adequately protected: see Torreggiani v Italy (Application No 43517/09) 8 January 2013, para 65.

“91 None the less, a finding that there is a real risk of inhuman or degrading treatment by virtue of general conditions of detention in the issuing member state cannot lead, in itself, to the refusal to execute a European arrest warrant.

“92 Whenever the existence of such a risk is identified, it is then necessary that the executing judicial authority make a further assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk because of the conditions for his detention envisaged in the issuing member state.

“93 The mere existence of evidence that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention, with respect to detention conditions in the issuing member state does not necessarily imply that, in a specific case, the individual concerned will be subject to inhuman or degrading treatment in the event that he is surrendered to the authorities of that member state.

“94 Consequently, in order to ensure respect for article 4 of the Charter in the individual circumstances of the person who is the subject of the European arrest warrant, the executing judicial authority, when faced with evidence of the existence of such deficiencies that is objective, reliable, specific and properly updated, is bound to determine whether, in the particular circumstances of the case, there are substantial grounds to believe that, following the surrender of that person to the issuing member state, he will run a real risk of being subject in that member state to inhuman or degrading treatment, within the meaning of article 4.

“ 95 To that end, that authority must, pursuant to article 15(2) of the Framework Decision , request of the judicial authority of the issuing member state that there be provided as a matter of urgency all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained in that member state.

“ 96 That request may also relate to the existence, in the issuing member state, of any national or international procedures and mechanisms for monitoring detention conditions, linked, for example, to visits to prisons, which make it possible to assess the current state of detention conditions in those prisons.

“97 In accordance with article 15(2) of the Framework Decision , the executing judicial authority may fix a time limit for the receipt of the supplementary information requested from the issuing judicial authority. That time limit must be adjusted to the particular case, so as to allow to that authority the time required to collect the information, if necessary by seeking assistance to that end from the central authority or one of the central authorities of the issuing member state, under article 7 of the Framework Decision. Under article 1592) of the Framework Decision , that time limit must however take into account the need to observe the time limits set in article 17 of the Framework Decision. The issuing judicial authority is obliged to provide that information to the executing judicial authority.

“98 If, in the light of the information provided pursuant to article 1592) of the Framework Decision, and of any other information that may be available to the executing judicial authority, that authority finds that there exists, for the individual who is the subject of the European arrest warrant, a real risk of inhuman or degrading treatment, as referred to in para 94 of this judgment, the execution of that warrant must be postponed but it cannot be abandoned: see, by analogy, Lanigan’s case [2016] Q.B. 252,302–303, para 38.

“99 Where the executing authority decides on such a postponement, the executing member state is to inform Eurojust, in accordance with article 17(2) of the Framework Decision, giving the reasons for the delay. In addition, pursuant to that provision, a member state which has experienced repeated delays on the part of another member state in the execution of European arrest warrants for the reasons referred to in the preceding paragraph, is to inform the council with a view to an evaluation, at member state level, of the implementation of the Framework Decision.

“100 Further, in accordance with article 6 of the Charter, the executing judicial authority may decide to hold the person concerned in custody only in so far as the procedure for the execution of the European arrest warrant has been carried out in a sufficiently diligent manner and in so far as, consequently, the duration of the detention is not excessive: see Lanigan;s case [2016] QB 252, , 305–306, paras 58–60. The executing judicial authority must give due regard, with respect to individuals who are the subject of a European arrest warrant for the purposes of prosecution, to the principle of the presumption of innocence guaranteed by article 48 of the Charter.

“101 In that regard, the executing judicial authority must respect the requirement of proportionality, laid down in article 52(1) of the Charter, with respect to the limitation of any right or freedom recognised by the Charter. The issue of a European arrest warrant cannot justify the individual concerned remaining in custody without any limit in time.

“102 In any event, if the executing judicial authority concludes, following the review referred to in paras 100 and 101 above, that it is required to bring the requested person's detention to an end, it is then required, pursuant to articles 12 and 17(5) of the Framework Decision , to attach to the provisional release of that person any measures it deems necessary so as to prevent him from absconding and to ensure that the material conditions necessary for his effective surrender remain fulfilled for as long as no final decision on the execution of the European arrest warrant has been taken: see Lanigan's case, para 61.

“103 In the event that the information received by the executing judicial authority from the issuing judicial authority is such as to permit it to discount the existence of a real risk that the individual concerned will be subject to inhuman and degrading treatment in the issuing member state, the executing judicial authority must adopt, within the time limits prescribed by the Framework Decision, its decision on the execution of the European arrest warrant, without prejudice to the opportunity of the individual concerned, after surrender, to have recourse, within the legal system of the issuing member state, to legal remedies that may enable him to challenge, where appropriate, the lawfulness of the conditions of his detention in a prison of that member state: see F’s case [2014] 2 CMLR 19, para 50. “

Following the decision of the Divisional Court in Vasilev, Mr Vasilev was surrendered to Bulgaria. It is agreed by the parties that the assurances given were not met in relation to him. He was held in Belene Prison between 16 May 2016 and 16 June 2016 in a cell which was 20 square metres and was occupied by 8 people, amounting to 2.5 square metres of space per person. Mr Vasilev was moved on about 16 June 2016 to a room in a unit known as Group 7. The size of the cell was 23.85 square metres.The number of prisoners occupying this room varied. From 16 June 2016, until Mr Vasilev’s sentence was suspended on 11 October 2016, each prisoner in the Group 7 room had less than 3 square metres of floor space. The conditions in which Mr Vasilev was held from 16 May 2016 to 11 October 2016 therefore breached the assurances given by the Bulgarian authorities as Mr Vasilev had an area less than the 4 square metres per person guaranteed. Indeed, it was less than the 3 square metres per person, the absence of which the European Court of Human Rights said in Neshkov gave rise to a strong presumption that the conditions of detention were in breach of Article 3 ECHR: see paragraph 232 of the judgment in Neshkov v Bulgaria. Furthermore, Mr Vasilev was held in Sofia prison for three days from his return on 13 May 2016 to 16 May 2016. Although not a breach of the assurance, the Divisional Court had indicated in its judgment in Vasilev that placing a person in Sofia Prison was inconceivable as that would give rise to a real risk of treatment which would involve a breach of Article 3 ECHR.

Other persons were surrendered to Bulgaria following the giving of similar assurances. They included Mr Ogoyski and Mr Asenov. It is agreed by all parties that Mr Ogoyski was held in a dormitory in Kremikovtsi prison for approximately 1 month from 3 July 2016 in circumstances which breached the assurance. He was held in a cell measuring 21 square metres which was occupied by 14 prisoners (including, it seems, Mr Ogoyoski). Each prisoner had less than 1.5 square metres of space, again a breach of the assurance that each returned prisoner would have 4 square metres of space (and less than the 3 square metres recognised in any event as giving rise to a strong presumption of a real risk of Article 3 ECHR). Furthermore, Mr Ogoyski was held for 10 days from his return on 1 June 2016 in Sofia Central Prison.

Mr Asenov was held in premises known as No. 510 of the reception unit of Burgas prison from 25 July 2016 to 18 August 2016. The cell measured 18.98 square metres and was occupied by 12 persons. Each person had less than 1.58 square metres of space. From 18 August 2016 to 25 October 2016, he was held in room 303 of Group 5 in a cell measuring 26.46 square metres. Each person had 1.56 square metres of space. Those circumstances amount to agreed breaches of the assurances. Furthermore, since 25 October 2016, Mr Asenov has been held in a cell which does not contain a toilet and inmates are locked in between 8 p.m. and 6 a.m. during which time they must use bottles and buckets as a toilet. The parties accept that this is a further breach of the assurances. It should be noted that from 25 October 2016, Mr Asenov has been held in a cell in Group 8 measuring 20.38 square metres. The respondent has not provide the court with information as to the number of occupants. The Bulgarian Helsinki Group, a non-governmental agency which visited Mr Asenov, reports the cell as holding 11 inmates. If that is true, each prisoner would have less than 1.85 square metres of space which would breach the assurance. Furthermore, Mr Asenov was held for 2 days on his return in Sofia Central Prison. It is said in a letter from a senior commissioner to the Bulgarian Ministry of Justice dated 21 February 2017, that Mr Asenov has refused to be transferred from the prison That, of course, does not excuse the breaches of the assurance, or of Article 3 ECHR or Article 4 of the Charter. It was also said that a refurbished hostel will open at Debelt in March 2017 and that would enable Mr Asenov to be transferred and kept in conditions which met relevant standards. The most recent information provided to the court, contained in a letter from the Bulgarian Ministry of Justice to the Crown Prosecution Service dated 15 March 2017 indicates that “moving prisoners from Burgas Prison to Debelt is about to start in a few days”.

The assurances offered by the Bulgarian authorities are in materially similar terms to those considered by the Divisional Court in Vasilev and set out at paragraph 22 above. There are minor differences, which appear to be differences of translation, between the wording of the assurances as set out above and the text of the assurances provided to this court. The essential assurances are the same: namely that the dormitories where surrendered persons are accommodated will have an area of 4 square metres per person, direct access to daylight and natural ventilation, and a self-contained sanitary facility.

Other relevant material includes a document dated 7 November 2016 indicating that heads of prisons were instructed again on the monitoring of detention of persons surrendered during the whole duration of their imprisonment. There is also a letter from the Bulgarian Ministry of Justice dated 7 November 2016 to the Crown Prosecution Service re-assuring them that the breaches of the guarantees would not be repeated in future cases.

The response by the Bulgarian authorities is that a reform programme is in progress intending to refurbish prisons and bring them up to standards which avoid the risk of detainees being accommodated in conditions which involve a real risk of being subjected to inhuman or degrading treatment contrary to Article 3 ECHR. They have drawn attention to an action plan, revised in December 2016, which sets out the proposed reforms. The reforms include the adoption of a law intended to ensure changes to the allocation and transfer of prisoners and envisioned the entering into force of a rule providing for at least 4 square metres of floor space per prisoner. The draft law was also intended to provide compensatory and preventative remedies, available in courts, to compensate those who suffer conditions in breach of Article 3 and to enable an individual to bring a claim before an administrative court for an injunction to remedy any actions or inactions on the part of the administration which amount to inhuman or degrading treatment.

An addendum to the action plan of December 2016 was also provided. That indicated that the relevant draft law had been adopted and the text of the law, stating that it was to be effective from 7 February 2017, was also provided. Article 43 provides that the minimum living space for each prisoner should be not less than 4 square metres. The January 2017 addendum to the action plan, however, states that the provisions regarding the preventative remedy will not come into force until 1 May 2017. The reasons given for the delay include the fact that the prison administration needs some time to redistribute prisoners and the inauguration of the Debelt prison (intended to enable relocation of prisoners from Burgas) has been delayed.

Mr Hardy Q.C., on behalf of the issuing judicial authorities, accepts that there have been breaches of the assurances in three cases of persons surrendered to Bulgaria. He also accepts that no explanation of the breaches has been provided. He submits, however, that the picture is improving and that Bulgaria is taking steps to ensure that conditions in prisons will not result in a real risk of ill-treatment contrary to Article 3 ECHR. In those circumstances, he submits that there is no compelling evidence to rebut the presumption that Bulgaria will comply with the assurances that is has given.

We have considered carefully the criteria identified in Sunca for evaluating the assurances given. We also have in mind the decision of the Divisional Court in Vasilev. We are satisfied that the presumption that the assurances will be fulfilled has been rebutted in the present case. We note that the assurances have been breached in relation to 3 different individuals, Mr Vasilev, Mr Ogoyski and Mr Asenov. Those breaches have continued over a substantial period of time: approximately 5 months in the case of Mr Vasilev, 28 days in the case of Mr Ogoyoski, and at least 3 months (and possibly 8 months) in the case of the space provided for Mr Asenov and, in his case, approximately 5 months concerning the failure to provide sanitary facilities within the dormitory where the prisoners are detained from 8 p.m. to 6 a.m. each day. Furthermore, the breaches are substantial. The space provided to the three persons surrendered, was not only below the 4 square metres provided for in the assurances, it was below 3 square metres (and, on occasions, below 2 square metres) per person. Furthermore, no satisfactory explanations have been provided to explain the breaches. In addition, in contrast to the position in relation to the Romanian authorities in Sunca who accepted that errors had been made, expressed regret and re-affirmed the assurances and explained how prison numbers would be monitored (see paragraph 34 to 35 of the judgment in Sunca), no such explanations, acceptance of errors or expressions of regret have been made in the present case. We are satisfied therefore that the third criterion in paragraph 52 of Sunca, set out in paragraph 25 above, is not met in the present case: as matters stand we cannot be confident that the assurances will be fulfilled.

It may also be that the assurances, although appearing to be sufficiently specific at the time that they were given, and sufficient to satisfy the Divisional Court in Vasilev, are not in fact sufficiently precise in the light of the events that have since occurred. It may be that more specific assurances need to be given relating to the prisons at which surrendered persons will be held and as to the provisions for monitoring conditions to ensure that the assurances are kept. It is not, however, necessary to reach a concluded view on that issue at present.

We have considered the action plan prepared by the Bulgarian authorities. We recognise that that plan, if implemented, may in future demonstrate a commitment to ensuring that prison conditions are improved and may, depending on an assessment of all the factors, result in a situation in future whereby prison conditions will meet relevant standards. We note the law that has been adopted with effect from 7 February 2017. However, we also recognise that the law intended to provide effective preventative remedies to avoid breaches will not come into force until 1 May 2017 and we further recognise that there have been delays in opening the Debelt prison. There is still no confirmation that the prison has been opened and that overcrowding at Burgas has been eased. In our judgment, on the evidence available at present , the presumption that the assurances will be complied with has been rebutted. We cannot be confident as matters stand that the assurances will be kept in the case of the appellants in the present case.

Considering the approach set out in Aranyosi, the position at present is this. First, having regard to paragraph 89 of the judgment in Aranyosi, there is information which is objective, reliable, specific and up to date of systematic or generalised deficiencies within the prison system, as appears from the decision of the European Court of Human Rights in Neshkov and the decision of the Divisional Court in Vasilev. That is accepted by the parties.

Secondly, there are substantial grounds to believe that the three individuals in the present case will be exposed to a real risk of inhuman or degrading treatment, having regard to paragraph 92 of the judgment in Aranyosi. The evidence is that assurances intended to prevent individuals being subjected to conditions which amount to inhuman and degrading treatment have been broken in the case of 3 individuals, over significant periods of time and in circumstances where the breaches are serious. Furthermore, there is no adequate explanation for the breaches and the general steps taken to improve conditions, whilst laudable, do not at the present time ensure that conditions will be such as to avoid a real risk to these three appellants if they are returned at present to Bulgaria.

In those circumstances, in accordance with paragraphs 95 and 96, we consider that it is necessary to ask the Bulgarian Ministry of Justice and the issuing judicial authorities for the supplemental information referred to below. We ask the Crown Prosecution Service to transmit the request to the Bulgarian Ministry of Justice so that the Ministry in conjunction with the issuing judicial authorities can provide the supplemental information. We would respectfully ask those authorities to provide within 42 days of receipt of this request the following supplemental information:

Two of the three appellants also seek permission to appeal on specific grounds related to their cases. The EAW in Mr Petrov’s case seeks his surrender in relation to two offences. The first is an offence of participating in a criminal group established to distribute narcotic drugs. The second is an offence of possession of 3 grammes of amphetamine sulphate with a view to distributing the drug. The sentence imposed was 3 years’ imprisonment. The EAW shows that the offences fell within the European framework list of “participation in a criminal organisation” and “illicit trafficking in narcotic drugs and psychotropic substances”. In ground one, Mr Petrov submits that the EAW did not particularise the drugs forming the offence of participation in a criminal group for the distribution of narcotics and submits that that contravenes sections 2, 10 and 65 of the 2003 Act.

First, in relation to sections 10 and 65 of the 2003 Act, section 10 provides that the judge must decide if the offence is an extradition offence. That is defined in section 65 as, amongst other things, an offence to which the conditions in sub-section (5) are satisfied. The conditions in that sub-section are that (a) the conduct occurred in the category 1 territory, (b) no part occurred in the United Kingdom, (c) a certificate issued by an appropriate authority of the category 1 territory shows that the conduct falls within the European framework list and (d) the certificate shows that a sentence of imprisonment or other form of detention for a term of four months or more were imposed. All those conditions are satisfied here. In particular, in relation to condition (c), there is a statement from the appropriate authority showing that the offence falls within the framework list. Sections 10 and 65 of the 2003 Act do not require the particularisation of the drugs in question.

Section 2(6) of the 2003 Act requires, in the case of a person in respect of whom an EAW has been issued and who has been convicted, the provision of certain information. The information includes particulars of the person’s identity, of the conviction and of the sentence. The EAW in the present case satisfies those requirements. The details of the conviction are set out with sufficient particularity. They do not need to identify the drug. Mr Petrov relies upon a dictum of Sir Anthony May President of the Queen’s Bench Division in The Criminal Court at the National High Court, 1^st Division (a Spanish Judicial Authority) v Murua [2010] EWHC 2609 where he said:

“58 The court's task — jurisdiction, if you like — is to determine whether the particulars required by section 2(4) have been properly given. It is a task to be undertaken with firm regard to mutual co-operation, recognition and respect. It does not extend to a debatable analysis of arguably discrepant evidence, nor to a detailed critique of the law of the requesting state as given by the issuing judicial authority. It may, however, occasionally be necessary to ask, on appropriately clear facts, whether the description of the conduct alleged to constitute the alleged extradition offence is fair, proper and accurate. I understood Ms Cumberland to accept this, agreeing that it was in the end a matter of fact and degree. She stressed, however, a variety of floodgates arguments with which in general I agree, that this kind of inquiry should not be entertained in any case where to do so would undermine the principles to be found in the introductory preambles to the Council Framework Decision of 13 June 2002.”

Similarly, in Assange v Sweden [2011] EWH 2849,Sir John Thomas P. said at paragraph 112 of the judgment that “ it seems to us that although the court executing the EAW must scrutinise the EAW to ensure that it complies with the requirements of particularity, it should ordinarily accept the classification of the issuing Member State, unless there is an obvious inconsistency which shows that the conduct alleged does not amount to the offence under the law of that state.” An appeal was dismissed: see [2012] A.C. 471.

In our judgment, there is no obvious inconsistency here to suggest that the offence does not amount to an offence under Bulgarian law. Nor is there anything to cast doubt upon the description of the offence given in the EAW. In the circumstances, there is no basis for considering that the particulars provided fail to satisfy the requirements of section 2 of the 2003 Act. Permission to appeal on ground 1 is therefore refused.

Mr Petrov further contends that return to Bulgaria would violate Article 8 ECHR as it involves a manifestly trivial amount of drugs, his wife has serious mental health difficulties and is reliant upon him and the conduct occurred over 9 years before. The conduct for which the appellant is to be returned involves two offences, one of participation in a criminal group distributing illegal drugs and the second related to possession. One sentence of 3 years was imposed in respect of both offences and reflects the entire offending behaviour. Mr Petrov is wrong, therefore, to focus solely on the second offence. In truth, this ground is parasitic on the challenge to the first offence, made in ground 1, and permission to appeal on that ground has been refused. Considering the matter more generally, the District Judge considered the great weight to be accorded to the public interest in upholding extradition arrangements and the need for very strong counter-balancing factors before extradition could be said to be disproportionate. He noted that the offences were serious and the convictions were not trivial. The sentence was one of three years’ imprisonment. Any delay in returning the appellant to Bulgaria was the result of his own actions as he was a fugitive who had not attended court on the relevant dates. Against that background, the District Judge noted the impact on the appellant’s wife (although there was no medical evidence to suggest that she had mental health issues and had said that she could return to Bulgaria to stay with her parents if necessary). He noted that the appellant had been in the United Kingdom since February 2014 and had established a life in this country. He considered that those considerations did not outweigh the public interest in extradition and that the return of Mr Petrov to Bulgaria was proportionate in the present case. We agree. We refuse permission to appeal on ground 2.

Mr Ivanov seeks to renew his application for leave to appeal on three grounds. First, he submits that return to Bulgaria, given his medical condition would be a breach of Article 3 ECHR and section 21 of the 2003 Act. Secondly, he contends that return to Bulgaria would be contrary to section 25 of the 2003 Act as return would be unjust or oppressive by reason of his physical condition. Thirdly, he contends that return would violate his right to respect for his private and family life under Article 8 ECHR. These points were considered carefully by the District Judge. The appellant has had heart surgery from which he has recovered. He has tinnitus. He also has gout. He requires medication. The District Judge noted that hospitalisation and treatment for prisoners in Bulgaria is free. In reality, the only point raised is that the appellant will have to pay for medicines whilst serving his two year sentence. The District Judge was satisfied that the fact that he might have to pay for medication did not give rise to a real risk of a breach of Article 3. In any event, the District Judge was satisfied that he had family in Bulgaria and that his family could provide support to him, as it had done previously (for example by paying for legal representatives for him in Bulgaria). The District Judge also considered that returning the Appellant to Bulgaria to serve a 2 year sentence for a sexual assault on a 15 year old passenger in the taxi he was driving was not oppressive, notwithstanding the gout and tinnitus and the fact that gout could be painful if not treated with medication. Finally, he considered that the public interest in extradition outweighed the interests of the Appellant and his amily so that any extradition was proportionate. We agree with each of his conclusions, for the reasons that he gave, in relation to Articles 3 and 8 ECHR and section 25 of the 2003 Act. We refuse leave to appeal on these three grounds.

We would ask that a transcript of this judgment accompany the request for supplemental information.