Nikolov v Regional Prosecutor's Office Pazardjik (Bulgaria)

In an extradition appeal raising an article 3 issue, the appellate court may stay proceedings to permit the issue to be properly developed at first instance with sufficient evidence. The court should avoid determining generic country conditions or the adequacy of assurances as a court of first instance where the evidential material is incomplete. Relevant material may include accurate translations, the authority and capacity of the person giving an assurance to bind the prison service, and evidence of steps taken by the requesting state.

Petar Stoimenov Nikolov appealed in extradition proceedings concerning Bulgaria. The appeal raised an article 3 issue relating to prison conditions and the adequacy of assurances given by the requesting state. The appellant also sought an adjournment to adduce further evidence.

The Administrative Court concluded that the issue should first be considered in proceedings before the District Judge, due to be heard in February 2016. The central question was whether the appeal should proceed immediately or be stayed so that the evidential basis could be properly developed.

1. The proceedings were stayed pending determination by the District Judge of the article 3 issues. The court therefore did not determine the appellant’s request for an adjournment to adduce evidence.
2. The evidence sought by the appellant could be provided in the District Judge proceedings, or adduced by the appellant there. Staying the appeal would also allow the requesting state to consider whether the material already before the court was adequate.
3. The documentation appeared incomplete. In particular, only part of the assurance appeared to have been translated, and the material did not identify who within the Ministry of Justice had given it or that person’s position.
4. The requesting state should consider whether the Ministry of Justice had capacity to bind the Prison Service. The answer could depend on the requesting state’s constitutional arrangements.
5. An article 3 issue concerning conditions in a country, and the adequacy of assurances given by that country, is generic and requires an appropriate evidential basis. Evidence should address the specific assurance and the steps taken by the Bulgarian authorities. The September meeting material, which had been produced late, indicated a slight change in the situation but did not affect the principal reason for the stay.
6. It was unsatisfactory for an appellate court to act as a court of first instance on an important issue when the material was insufficient. The appeal was stayed so that the issue could be properly tried at first instance and later brought before the Divisional Court with a complete evidential foundation. An application for a certificate for leading counsel was refused as premature.

The judgment records proceedings before the Administrative Court, but does not state the citation or outcome of the decision under appeal.