Marian v Regional Prosecutor's Office of Ruse, Bulgaria

An EAW was issued by the Bulgarian authorities on 5 January 2016. That sought the extradition of the Appellant for two alleged offences of breach of the law on trademarks. It is alleged that on the first occasion, on 21 August 2013, the Appellant travelled from Romania in a car driven by another person to Ruse in Bulgaria where he purchased a total of 847 tracksuits bearing counterfeit well-known brand names intending to sell them in Romania. The EAW says that the Appellant was stopped at the border, and, as the Appellant did not have the necessary documents for the purchased products, he surrendered the goods to the Bulgarian police authorities.

On 25 August 2013, it is alleged that the Appellant again went to Ruse with a view to purchasing tracksuits bearing counterfeit well-known brand names and then re-selling them. It is alleged that a man named Vasi, and another man, were waiting in the car when the Appellant went to purchase the goods. Again, it is alleged that they were stopped at the border and as the Appellant did not have the necessary documentation he surrendered the goods to the Bulgarian police authorities.

The EAW was certified by the National Crime Agency on 12 January 2016.

The Appellant, Mr Marian, is a 35 year old Romanian national. He grew up in an orphanage in Romania and had no contact with his parents who are no longer alive. He has a low intelligence level as measured by his IQ. He has consistently maintained that he began working in Romania for a man known as Vasi. He has said that Vasi took his identity card from him. He said that lived at Vasi’s house and carried out work for others, on Vasi’s instructions, but the Appellant says he did not receive payment for that work. He says he was beaten on one occasion and was frightened of Vasi.

Mr Marian says that he was involved in the two offences comprised in the European Arrest Warrant in this case on the instructions of Vasi. He says that ultimately Vasi made him travel to Spain where he lived with Vasi and Vasi’s family. He says that he slept on cardboard in the kitchen. He says he was told there would be a job in construction for him but in fact there was no job. He was forced to beg and told that

Mr Marian was arrested in the United Kingdom and was brought before a district judge on 14 October 2017. He was detained in custody and remained there until he was granted bail on 15 December 217. He went to live at the home of someone suggested by his cellmate. He says that that man took all his money and made him work unpaid and the man said that Mr Marian would go back to prison if he did not. Ultimately, on one of the days that he had to report to the police, he told a police officer that he was worried about staying at the property. That officer contacted the Salvation Army. A minister there arranged for him to stay at the home of a Romanian pastor.

Next the district judge considered the submission that there would be a real risk that Mr Marian would be exposed to a breach of his rights under Article 4 of the European Convention on Human Rights (“ECHR”). That provides, so far as material, that:

No one shall be held in slavery of servitude.

No one shall be required to perform forced or compulsory labour/.

[Exceptions].”

There is an international treaty dealing with attempts to suppress slavery and trafficking, namely the Protocol to the United Nations Convention against Transnational Organized Crime, named the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (the “Palermo Protocol”). The European Union has adopted Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking requiring Member States to adopt measures to criminalise trafficking and to protect the victims of trafficking (“the Directive”).

The district judge referred to the decision of the Divisional Court in Olga C v The Prosecutor General’s Office of the Republic of Latvia[2016] EWHC 2211 (Admin) where the Court observed that:

In the present case, it was not suggested that the authorities in Bulgaria would subject the Appellant to treatment which would breach his rights under Article 4 ECHR. Rather, it was suggested that Mr Marian would be vulnerable to being trafficked by criminals or others if he were returned to Bulgaria. The district judge noted that to succeed on this ground, the Appellant would need to show that he was at real risk of being trafficked and that the requesting state (Bulgaria) was not in a position to provide adequate protection.

The district judge noted that he was not bound by the decision of the Authority that Mr Marian had been trafficked but he stated that he would not go behind that opinion. I assume, therefore, that the district judge accepted that the Appellant had been a victim of trafficking at some point. The district judge noted that he was entitled to assume that Bulgaria, as a member of the Council of Europe, would comply with its obligations under the ECHR.

The district judge observed that the US State Department 2017 report noted that Bulgaria was making significant efforts, and has devoted significant resources, to a written plan which, if implemented would constitute significant efforts to meet minimum standards. He observed that the most recent, 2018, US State Department Report had improved the ranking of Bulgaria (moving it from Tier 2 Watch List to Tier 2). That report indicated that the Bulgarian government had demonstrated significant efforts to address the issue of trafficking, identifying more victims and convicting more traffickers. He referred to the GRETA report of 2015 which indicated progress had been made in a number of areas although some issues were identified for immediate action. He noted the evidence of Ms MandzhukovaStoyanova. He noted that she had not in fact been involved in any trafficking cases in Bulgaria and did not have any personal knowledge and he treated her evidence with caution given her lack of direct knowledge of the relevant issues. He said that she had given her personal view, based on a reading of the literature, and he was not assisted by her evidence. He concluded that:

am not persuaded that there is a real risk that the Bulgarian authorities will fail to discharge their duties to protect the RP from further trafficking.

Finally, the district judge turned to the question of whether extradition would be disproportionate interference with the Appellant’s right to respect for his private life under Article 8 ECHR. If extradition were not compatible with the Appellant’s Convention rights, then he would have had to order the discharge of the Appellant pursuant to section 21 of the Act.

First, the district judge held that the Appellant was not a fugitive from justice. That was material as, if the Appellant had been a fugitive from justice, there would be a strong public interest in not allowing the United Kingdom to become a safe haven for fugitives from justice: see paragraphs 9 and 48(ii) of the decision of the Divisional Court in Polish Judicial Authorities v Celinski [2015] EWHC 1274 (Admin).

The district judge then set out the factors favouring extradition. The district judge referred to the fact that the allegations were that the Appellant had on two occasions bought large numbers of tracksuits bearing counterfeit trademarks with an estimated value of about £97,000. That amount was significant. The district judge regarded the offences as serious.

The district judge considered that it would not be appropriate for him to consider whether the Appellant was under the control of Vasi whilst allegedly committing these offences in Bulgaria. That was for the trial court in Bulgaria, and a matter for the relevant authorities in Bulgaria to explore in deciding whether the Appellant should be prosecuted. Pausing there, Article 8 of the Directive provides that Member States must ensure that competent authorities are entitled not to prosecute or impose penalties on victims of trafficking when their involvement in those activities is the result of their being trafficked as defined in the Directive. The evidence is that Bulgarian law provides that an act is not to be considered culpably committed if it were performed by a person who is a victim of trafficking and was forced to perform the act as a result of being such a victim.

The district judge (in 2018) said that the offences were alleged to have been committed in 2013 and so were not old. The Appellant had built up a private life in the United Kingdom but only for a short time as he arrived here in 2017. He had not established any family life in the United Kingdom.

The district judge then considered the factors weighing against extradition. He referred to the fact that the allegations were not the gravest allegations that a defendant could face. He said that:

do not intend to recite all that has been said on his behalf by the various live witnesses and within the statements that I have read. There is considerable sympathy for him. He has not been here for over a year, being arrested on arrival into the UK and he clearly has various issues and vulnerabilities.”

The district judge concluded that:

The district judge therefore decided that extradition was proportionate and necessary. He ordered that the Appellant be extradited to Bulgaria.

The Appellant applies to admit new evidence in the form of:

A psychiatric report of Dr Obuaya dated 18 October 2018;

A letter from Dr Lewthwaite dated 1 November 2018 confirming that the Appellant has chronic hepatitis;

A second addendum proof of evidence from the Appellant setting out the events that have happened since the decision of the district judge on 31 August 2018; and

Statements from the Appellant’s solicitor (Ms Carita Thomas) and his former anti-trafficking support worker, Ms Carolyn Smith.

The Respondent sought to adduce new evidence in the form of a letter dated 4 February 2019 from the Bulgarian authorities indicating that if the Appellant were extradited then, on his arrival in Bulgaria, he would undergo “a complex forensic psychiatric and psychological expert examination in order to determine his fitness to be involved in criminal proceedings”.

The proof of evidence of Mr Marian says that after the decision of the district judge, the Romanian pastor who was assisting him (and gave evidence on his behalf to the district judge) began exploiting Mr Marian. Mr Marian says that he would work cleaning houses or gardens or he would get work from the pastor in the form of translating for people trying to open bank accounts. He also says that he worked for the pastor to get commercial spaces ready to be opened. He was not paid for this work. He had a room with a bed but often someone else would use this room and he had to sleep on the floor in the office on a mattress. He had little money to heat the room and frequently could not shower because he was asked to pay for heating the water and he did not have much money. Following an incident over a mattress, the Appellant says he was assaulted (by someone else, not the pastor). He contacted the police and Ms Carolyn Smith, the anti-trafficking support worker. She found him a place at Palm Cove where he has his own room with heating and fridge for medication. He shares the kitchen and bathroom with other people.

Ms Carolyn Smith confirmed in her statement that she received telephone calls form Mr Marian on 3 February 2019 saying that he had been assaulted. She told him to go to hospital and speak to the police. She said that she was concerned that Mr Marian was being exploited by other Romanians. She managed to get him a five day placement at a College to take a programme aimed to support and educate survivors of modern slavery and human trafficking and re-build their self-confidence, independence and ability to trust. She then found him accommodation at Palm Cove.

Dr Obuaya is a consultant psychiatrist and is a visiting psychiatrist at the Helen Bamber Foundation. He assessed Mr Marian as meeting the criteria for diagnosis of a severe depressive episode. He agreed, in that respect, with the diagnosis of Dr Walsh. Dr Obuaya noted that the recommended treatment for such a severe depressive episode would involve the use of medication and psychological treatment. The prognosis would be good if those recommendations were implemented.

Dr Obuaya also went on to consider the possible mental health consequences if Mr Marian were extradited to Bulgaria and imprisoned or even if he were subsequently released into the community. He concluded that Mr Marian woUld struggle to establish a life in Bulgaria if he suffered from depression and had no adequate personal professional support. Mr Marian has no friends or family in Bulgaria (he is from Romania and, apart from the allegations involving the two visits in 2013 to Ruse, a town in Bulgaria to purchase counterfeit tracksuits and possible court appearances there, there is no evidence of him living in Bulgaria or having any links there). Dr Obuaya said that:

Dr Obuaya considered what would be likely to happen to Mr Marian if he were imprisoned in Bulgaria. He very fairly noted that he did not have any expertise which would enable him to comment on the psychological therapy that would be available to Mr Marian in a Bulgarian prison. However, he noted that the success of interventions aimed at supporting his well-being would be dependent on the establishment of a “safe” environment for him and the continuation of the bond between him and his therapist. He said in his report:

It is likely that he would become socially withdrawn if he continues to live in fear for his safety, making it less likely that he would seek support from mental health services there, assuming they would be available to him.

Furthermore, if [Mr Marian] is extradited before the completion of any further psychological therapy he may begin in the UK, its discontinuation is likely to be interpreted by him as another loss, cause him psychological distress, make it less likely that he would seek professional help and possibly further impair his ability to form trusting relationships in general in future. There is likely to be a similar adverse impact from the loss of the support he has received ….. in the UK.”

Section 27(4) of the Act provides that one of the conditions under which the High Court on appeal may allow an appeal is if:

the issue or evidence would have resulted in the appropriate judge deciding a question before him at the hearing extradition differently:

if he had decided the issue in that way he would have been required to order the person’s discharge”

The requirements for the admission of fresh evidence was considered by the Divisional Court in Szombathely City Court v Fenyvesi[2009] EWHC 231 (Admin). The material needs to be material which either did not exist at the time of the extradition hearing or, if it did exist, was not reasonably obtainable at the time of the hearing. The material must be material that would have resulted in the district judge deciding the question differently. Here the second addendum proof of evidence of Mr Marian, and the additional witness statements of Ms Carita Smith and Ms Carolyn Smith refer to events which occurred after the extradition hearing and, therefore, are material which was not available at the time of the hearing. The evidence of Dr Lewthwaite addresses the Appellant’s current condition in relation to his hepatitis. The report of Dr Obuaya also addresses the current mental state of Mr Marian and was not available at the hearing could not have been obtained with reasonable diligence. For the reasons set out below, I consider that all that material is, on the particular factual circumstances of this case, decisive. I therefore admit the evidence of Dr Obuaya, Dr Lewthwaite, the Appellant’s second addendum proof of evidence, and the statements of Ms Carita Smith and Ms Carolyn Smith. I have considered the evidence from the Bulgarian authorities dated 4 February 2019 but, ultimately, this did not affect matters and it is not necessary to rule on the application to admit that evidence.

The extradition of Mr Marian would be a disproportionate interference with the right to respect for his private life and extradition would therefore be contrary to section 21 of the Act;

The district judge erred in concluding that Mr Marian would not face a real risk of treatment contrary to Article 4 ECHR;

The district judge erred in concluding that extradition would not be unjust or oppressive and so contrary to section 25 of the Act.

Ms Townshend for the Appellant submits that the only relevant factor favouring extradition is the public interest is in upholding extradition arrangements. The district judge found that the Appellant was not a fugitive and so the public interest in not allowing individuals to escape from justice and seek a safe haven in the United Kingdom did not apply. Ms Townshend submitted the offences were not serious and there had been delay. In addition, either there was a risk of the Appellant being retrafficked if he were returned to Bulgaria, or alternatively, if he were returned, then the Bulgarian authorities would have to accept that he had been trafficked and so he could not be found guilty of a crime, having regard to Article 8 of the Directive and the requirements of Bulgarian law. In all the circumstances, extradition would result in a disproportionate interference with his rights under Article 8 ECHR

Ms Brown for the Respondent submitted that there was no real risk of Bulgaria failing to comply with relevant obligations in relation to people who had been trafficked. Equally, it should not, she submitted, be assumed that because the competent authorities in the United Kingdom accepted that the Appellant had been trafficked, so would the Bulgarian authorities. Those authorities were entitled to make their own assessment of the Appellant and to decide if the offences were committed whilst he was being trafficked and as a result of being trafficked. Ms Brown accepted that the court was entitled to take account the fact that there had been a finding by the UK Authority that the Appellant had been trafficked and to consider the mental health evidence relating to the effect of that on the Appellant, the impact of return to Bulgaria in those circumstances and all other relevant factors.

The factor in favour of extradition in the present case is the weighty public interest in extradition in that people accused of crimes should be brought to trial: see per Baroness Hale at paragraph 8(4) of her judgment in HH v Deputy Prosecutor of the Italian Republic[2013] 1 A.C.338; and paragraph 9 of the judgment of the Divisional Court in Celinski[2015] EWHC 1274 (Admin).

The factors against extraditing involve a combination of the particular factual circumstances in this case. First, there is the fact that the offences are, as they are described in the EAW, trade mark offences involving the purchase for re-sale of counterfeit goods, that is goods bearing a particular brand name where the owner of the brand has not consented to their use, and thereby causing loss to the owners of the exclusive right. The offences are alleged to have occurred on two occasions and involve substantial amounts of goods. They are serious allegations but, as the district judge held, they are not the gravest allegations that a defendant could face.

Secondly, the Appellant has built up a private life in the United Kingdom. Thirdly, there is the passage of time since the alleged offending. That is said to have occurred in August 2013. That is almost five and a half years ago. The passage of time is not the result, on the evidence, of delay on the part of the Bulgarian authorities (who would not have known where the Appellant was) nor of the Appellant (as he was found by the district judge not to be a fugitive and was not released on conditions or subject to attendance at any further specified hearing or location).

Fourthly, there is the fact that the Appellant has been found to be the subject of trafficking at some stage. I accept it cannot be assumed, that because the competent Authority in the United Kingdom has accepted that an individual has been trafficked, that the authorities in the requesting state will necessarily accept that conclusion. The authorities in a requesting state are entitled to make their own assessment to determine whether or not a person had been trafficked. They may have different and additional evidence. Furthermore, they are entitled to determine whether the particular offences were the result of the person being trafficked or are, in fact, unconnected with the trafficking.

I recognise that, on the facts of this case, the likelihood is that the Bulgarian authorities would accept the finding of the UK Authority that the Appellant had been trafficked. I accept that given the basis on which that decision appears to have been made – at the very least, that the Applicant was under the control of the man, Vasi,

Nevertheless, as Ms Brown for the Respondent accepts, this Court can take into account the fact that the Authority in the UK has decided that the Appellant has been trafficked at some stage. This court can take account of the effects of being trafficked on the Appellant and the evidence now available from Dr Obuaya of the likely consequences if the Appellant were extradited to Bulgaria. He is a man of low IQ. He has suffered a severe depressive episode. If he is extradited and imprisoned in Bulgaria, he will be unlikely to think that he is safe, given what has happened to him. Thus, according to Dr Obuaya, treatment in prison, if available, is likely to be less effective as he is likely to become withdrawn and less likely to seek help from mental health services if he is in fear for his safety. The imprisonment, according to Dr Obuaya, would exacerbate the Appellant’s depressive illness. Such an event would, in the particular circumstances of the Appellant, precipitate depressive episodes and perpetuate existing depressive episodes. If the Appellant were released into the community in Bulgaria (for example, if he were granted bail), Dr Obuaya’s opinion is that the Appellant would struggle to establish a new life in Bulgaria without adequate personal and professional support. The Appellant has, of course, no ties with, and no friends or family in, Bulgaria. He comes from Romania. Dr Obuaya’s assessment is that the Appellant would be likely to find it very difficult to engage in the tasks needed to establish a new life in Bulgaria and he would be at risk of further exploitation and abuse given his history. The Appellant would lose the support mechanisms that he has established in the United Kingdom.

Given the particular combination of circumstances in this case, that is, the nature of the alleged offences, the passage of time, the fact that the Appellant has been the victim of trafficking, his mental health and vulnerability, and the real problems he would now face if he were sent to Bulgaria, this is a case where returning him now to Bulgaria for these offences would involve a disproportionate effect on his right to respect for private life. If the district judge had had the fresh evidence of Dr Obuaya, and the further evidence of the Appellant’s vulnerability, he would have reached a different decision on this issue and he would have been required to discharge the Appellant pursuant to section 21 of the Act. I will therefore allow the appeal, quash the order for the extradition of the Appellant and order that the Appellant be discharged, pursuant to section 27(4) and (5) of the Act.