Georgiev & Ors v Regional Prosecutor's Office, Shuman, Bulgaria & Ors (Rev 1)

Where general prison conditions create a real risk of treatment contrary to article 3, extradition may proceed if case-specific assurances reliably remove that risk. An assurance from an ECHR signatory and EU Member State carries a strong presumption of compliance. It must be accepted unless cogent reasons show a real risk that it will not be honoured.

Past breaches may provide a powerful reason for rejecting later assurances, but they require a contextual assessment. The court must consider their seriousness and extent, the state’s overall compliance, remedial action, institutional reforms and effective monitoring. Reliance requires assurances which, if fulfilled, prevent prohibited treatment, are given in good faith, have a sound objective basis for fulfilment and are capable of verification.

The Bulgarian judicial authorities sought the appellants’ extradition under European Arrest Warrants so that they could serve prison sentences. District judges ordered extradition after receiving assurances about personal space, sanitation and monitoring. The appellants appealed, relying on Bulgaria’s systemic prison deficiencies and breaches of assurances given in earlier extradition cases.

It was accepted that detention in the general Bulgarian prison estate presented a real risk of treatment contrary to article 3 of the European Convention on Human Rights. The principal questions were whether materially identical assurances had recently been breached and whether, considering the history of non-compliance, the court could rely on the assurances given for these appellants.

1. The appeals were dismissed. The assurances given by the Bulgarian authorities removed the real risk that the appellants would suffer inhuman or degrading treatment. They satisfied each of the four Zagrean criteria: fulfilment would prevent prohibited treatment; they were given in good faith; there was a sound objective basis for expecting fulfilment; and compliance was capable of verification.

2. Once a requested person establishes substantial grounds for believing that surrender would expose him to a real risk of treatment contrary to article 3, the requesting state must discount that risk. General deficiencies do not necessarily prevent extradition because the assessment remains individual and fact-specific. Case-specific information and assurances may therefore justify surrender.

3. Bulgaria’s status as an ECHR signatory and EU Member State created a strong presumption that it would fulfil its assurances. Cogent reasons were required to displace that presumption. Earlier breaches were serious and could provide powerful evidence against future compliance, but they did not automatically make later assurances unreliable.

4. Of the four post-Kirchanov cases examined, only one proven breach was established. Mr Petrov had been held for about three months in a multi-occupancy cell without accessible sanitation at night. The breach was serious, particularly given earlier failures, but limited in scope. The authorities subsequently offered compliant accommodation and promptly implemented his requested transfer.

5. The wider evidence showed significant prison reform, substantial compliance with the assurances, observance of the four-square-metre requirement, candid acceptance of proven breaches and serious quarterly monitoring. Independent visitors had encountered no obstruction. These matters provided an objective basis for confidence in future compliance.

6. District judges ordering extradition to Bulgaria in reliance on assurances should state prominently that extradition would not otherwise have been ordered. The judgment and emphasised assurances should accompany the surrendered person and be brought to each prison governor’s attention. If a later breach is accepted, the Bulgarian judicial authority should explain its cause and any measures taken to prevent recurrence.

Jeremy Baker J agreed with Hickinbottom LJ.

• High Court, Divisional Court: The court dismissed all three appeals and upheld the extradition orders: [2018] EWHC 359 (Admin).
• High Court: Permission to appeal was granted to the first and second appellants on 7 November 2016 and to the third appellant on 13 December 2016. The appeals were later stayed pending related lead cases.
• Magistrates’ court: District Judge Ikram ordered the first and second appellants’ extradition on 5 August 2016. District Judge Brennan ordered the third appellant’s extradition on 17 August 2016.