Sofia City Court, Bulgaria v Atanasova -Kalaidzhieva

A court conducting extradition proceedings under Part 1 of the Extradition Act 2003 possesses an implied jurisdiction to prevent abuse of its process. Ordinarily, allegations concerning misconduct in the investigation or preparation of evidence are matters for the requesting state’s trial court. In exceptional circumstances, however, a fresh extradition request may itself be abusive where the requesting authority fails to engage meaningfully with serious concerns previously identified by an English court and seeks surrender without addressing them. Mutual confidence under the European arrest warrant framework depends upon mutual respect between judicial authorities. A previous finding of bad faith, supported by subsequent evidence and left unanswered, may justify refusing extradition.

The Sofia City Court issued a European Arrest Warrant seeking the respondent’s return to Bulgaria to face a murder prosecution. The prosecution arose from an investigation said to have been controlled by the former Bulgarian Prosecutor General, against whom allegations of involvement in related killings had been made.

Following an earlier extradition request, the Divisional Court granted habeas corpus in 2009 after finding bad faith. A later request under Part 1 of the Extradition Act 2003 was stayed by Senior District Judge Riddle as an abuse of process. The issuing authority appealed under section 28. The issues were whether an abuse jurisdiction existed in Part 1 proceedings and, if so, whether the renewed request was abusive.

1. The appeal was dismissed. The Senior District Judge had jurisdiction to stay Part 1 extradition proceedings for abuse of process. The jurisdiction is implied by the statutory regime because its integrity must be protected: R (Bermingham & Others) v Director of the Serious Fraud Office [2007] QB 727.

2. The ordinary position is that misconduct by police or prosecutors in investigating an offence, obtaining statements or preparing evidence is for the requesting state’s trial court. That court must decide admissibility, weight and the consequences of any procedural breach. This limitation was stated in Symeou v Public Prosecutors Office, Patras, Greece [2009] EWHC 897 (Admin); [2009] 1 WLR 2384.

3. The limitation does not prevent an abuse finding where the requesting judicial authority itself fails to respect an earlier decision of the English court. The relevant question is not the nature of the underlying prosecution, but whether the issuing authority has responded to the identified defects and shown that they can be reviewed or remedied. The reasoning in Office of the Prosecutor General of Turin v Franco Barone [2010] EWHC 3004 (Admin) was applicable.

4. The circumstances were exceptional. The European Court of Human Rights had found serious institutional deficiencies in Bulgaria’s prosecution system and an ineffective investigation into the related murder of Nikolai Kolev in Kolevi v Bulgaria (application no. 1108/02). The earlier English finding of bad faith remained unanswered. The Sofia City Court’s later assurances merely repeated its previous response and did not address the concerns about the original investigation, the Prosecutor General’s involvement or the possibility of an independent and fair trial.

5. The renewed request was therefore an abuse of the process of the English court. The court declined to pre-judge the respondent’s guilt, but held that the issuing authority had provided no sufficient basis for renewed confidence in the good faith of the prosecution.

• High Court (Administrative Court) dismissed the appeal against the Senior District Judge’s order staying the extradition proceedings as an abuse of process: [2011] EWHC 2335 (Admin).
• City of Westminster Magistrates Court, before Senior District Judge Riddle, stayed the proceedings on 17 March 2011 because the investigation remained tainted and the concerns identified in 2009 had not been answered.
• Divisional Court granted habeas corpus on 9 October 2009, with judgment handed down on 4 November 2009, after finding the allegation of bad faith made out.