Kotsev v The Sofia District Public Prosecutor's Office (A Bulgarian Judicial Authority)

Under section 20 of the Extradition Act 2003, the issuing judicial authority bears the legal and criminal-standard burden of proving both deliberate absence from trial and entitlement to a retrial or review amounting to a retrial with the statutory guarantees. Awareness of criminal proceedings does not establish awareness of the particular trial, and a vague statement about renewed proceedings does not prove the required rights.

A domestic court should not determine foreign retrial law unaided. A clear assurance from the issuing judicial authority may be understood with the assistance of an English translation, but the mere fact that the requesting state is party to the Convention is insufficient. Where the evidence is deficient, further information may be sought before the appeal is finally determined.

Asen Kotsev appealed against District Judge Crane’s order of 9 January 2017 requiring his extradition to Bulgaria under section 21(3) of the Extradition Act 2003. Bulgaria sought his return to serve a sentence imposed in absentia for causing death and injury by dangerous driving and possessing TNT.

The district judge found that Kotsev had deliberately absented himself from the driving trial but not the TNT trial. She nevertheless held that he would have a compliant retrial in respect of the TNT offence. On appeal, the issues were whether the finding of deliberate absence was sustainable, whether the evidence established the statutory retrial guarantees for either offence, and whether the later sentence-merger hearing engaged the principles in Criminal proceedings against Zdziaszek [2017] 4 WLR 189.

1. Deliberate absence. The appeal court ordinarily respects factual findings made by a judge who heard the evidence, but the degree of deference depends on the judge’s evidential advantage. Here the relevant inference could be assessed without particular deference. The issuing authority had to prove beyond reasonable doubt that Kotsev knew the time and place of the trial and waived his right to attend, or deliberately caused his lack of knowledge. His awareness of criminal proceedings, and the statement that he might have wanted to forget them, did not establish that he knew of the particular trial. The finding under section 20(3) was therefore wrong.
2. Retrial rights. The words that proceedings would be renewed, and a general statement that Kotsev’s rights would be protected under Bulgarian law, did not establish the specific rights required by section 20(8). The court should not interpret foreign law unaided by a clear statement from the issuing judicial authority explaining what would happen in the defendant’s case. An English translation may assist in understanding such an assurance, but it cannot replace one.
3. The Bulgarian provisions concerning reopening appeared to make reopening conditional on a prior state guarantee. They therefore did not themselves establish a right to a retrial. The requesting state’s status as a Convention signatory could support an interpretation of ambiguous evidence, but was not by itself proof of compliance with section 20(5) and (8). The legal burden remained on the issuing authority; the requested person bore no preliminary evidential burden of raising an issue.
4. The sentence-merger process did not engage Zdziaszek because the available evidence indicated a purely arithmetical merger producing the longer sentence, with no discretionary determination of sentence.
5. The court allowed the Respondent 14 days to provide further information and submissions addressing the retrial guarantees and the nature of the merger hearing. Kotsev was to respond within a further 14 days. The final outcome of the appeal was reserved.

1. High Court (Administrative Court): District Judge Crane’s extradition order was challenged on appeal. The court found material errors in the approach to deliberate absence and retrial rights, but reserved final disposal pending further information.