Zdravkov v Judicial Authority of Bulgaria

Permission to amend extradition appeal grounds and adduce fresh evidence should be granted only where the proposed grounds are arguable and amendment is appropriate. In medical-treatment cases, an arguable Article 3 breach requires strong grounds for believing that extradition would create a real risk of treatment reaching the very high threshold required by the Convention. The burden for establishing oppression under section 25 of the Extradition Act 2003 is high and approaches, but is distinct from, the Article 3 burden. Article 8 requires a fact-sensitive balance of the competing interests. Medical vulnerability, delay, developing family life and time already spent in custody do not necessarily outweigh the strong public interest in extradition.

The appellant had been ordered by a District Judge to be extradited to Bulgaria to serve a sentence for theft. His original appeal grounds challenged Bulgarian prison conditions under Article 3 and the proportionality of extradition under Article 8. Those grounds were either abandoned or accepted as unarguable.

After developing HIV, tuberculosis and anaemia, the appellant sought permission to amend his grounds and rely on fresh evidence concerning medical treatment and prison conditions. He relied on Articles 3 and 8 and, alternatively, section 25 of the Extradition Act 2003. The central questions were whether the proposed grounds were arguable and whether it was appropriate to admit the fresh evidence at that stage.

1. Permission and fresh evidence. The court was entitled to examine the fresh evidence de bene esse when deciding whether the proposed amended grounds were arguable. Permission to amend depended on arguability and procedural appropriateness.
2. Article 3. The applicable threshold was whether there were strong grounds for believing that extradition would create a real risk of an Article 3 breach. There was a strong but rebuttable presumption that EU member states would comply with the Convention. Rebutting it required clear, cogent and compelling evidence. The procedural approach in Aranyosi operated only where the evidence first disclosed a real risk of inhuman or degrading treatment. The threshold for a medical-care case was very high, applying the approach in N v UK.
3. Section 25. The burden of proving oppression was high and approached, but was not identical to, the Article 3 burden. Parity between medical treatment in the United Kingdom and the receiving state was unnecessary. The question was whether the difference in treatment made extradition oppressive.
4. Article 8. The court adjusted the District Judge’s balance sheet to include the medical evidence, alleged vulnerability, custody and curfew, delay and developing family life. Applying Celinski and Norris, those matters did not sufficiently counterbalance the strong factors favouring extradition. The Article 8 challenge was not arguable.
5. The proposed amended grounds and application to adduce additional evidence were refused. The appeal was dismissed.

• High Court (Administrative Court): The appeal against the District Judge’s extradition order was dismissed. Permission to amend the grounds and to adduce fresh evidence was refused.
• District Judge: On 5 August 2016, the District Judge ordered extradition to Bulgaria, finding no real risk of an Article 3 breach and no disproportionate interference with Article 8 rights.