Chechev & Anor v Prosecutor's Office In Kardzhali, Bulgaria & Anor

In extradition appeals involving prison conditions, past breaches of assurances do not create a general bar on return to Bulgaria. The court must assess the individual case. If a requested person establishes a real Article 3 risk, the requesting state must dispel it through specific, good-faith and objectively verifiable assurances. Those assurances must cover accommodation meeting minimum standards, including personal space and sanitary facilities. The conduct test governs dual criminality under the Extradition Act 2003. An outdated European Arrest Warrant is not necessarily an abuse of process where the underlying offence and sentence remain and later information corrects the position. On Article 8, materially changed facts may require the appellate court to conduct the proportionality balance itself; a largely served sentence can make extradition disproportionate.

These were two appeals under section 26 of the Extradition Act 2003 against District Judge Fanning’s orders for the extradition of the appellants to Bulgaria. The cases were joined because both raised the adequacy of Bulgarian prison-condition assurances and the risk of treatment contrary to Article 3 of the European Convention on Human Rights.

The appeals also raised discrete issues concerning dual criminality, Article 8, abuse of process and fresh evidence. An earlier hearing was adjourned so that current information and specific assurances could be obtained from the Bulgarian authorities: [2020] EWHC 3115 (Admin). The central issue was whether the assurances dispelled the real risk of Article 3 ill-treatment in each appellant’s particular circumstances.

Lord Justice Singh gave the judgment, with Mr Justice Jay agreeing.

1. Fresh evidence. Applying the principles in Szombathely City Court and Others v Fenyvesi [2009] EWHC 231 (Admin), the court admitted evidence unavailable before the District Judge. Because current information was necessary to decide the prison-condition issue, the court determined the relevant issues for itself.
2. Article 3. The court applied the principles summarised in Georgiev and Others v Regional Prosecutor’s Office, Shuman, Bulgaria [2018] EWHC 359 (Admin), including cumulative assessment of prison conditions, burden-shifting and the need for assurances to satisfy the Zagrean criteria. The approach to assurances in Vasilev v Regional Prosecutor’s Office, Silistra, Bulgaria [2016] EWHC 1401 (Admin) and the guidance in Othman v United Kingdom (2012) 55 EHRR 1 were also applied. Past breaches did not establish a blanket prohibition on extradition to Bulgaria.
3. Applications of the assurance test. The assurances for Chechev identified Pazardzhik prison, guaranteed at least 4 square metres and private sanitary facilities, and provided monitoring and limits on transfer. They were sufficiently reliable. The assurances for Vangelov did not guarantee accommodation in the identified prison meeting minimum standards as to space and sanitary facilities. The Article 3 risk was therefore not dispelled. Vangelov’s appeal succeeded on Ground 1; Chechev’s failed on that ground.
4. Dual criminality and abuse of process. Applying Norris v Government of the USA [2008] UKHL 16, the conduct test applied. Deliberate possession of a large quantity of cigarettes without the required excise band would constitute an offence under section 170 of the Customs and Excise Management Act 1979. Permission on Ground 2 was refused. Applying Zakrzewski v Regional Court in Lodz, Poland [2013] UKSC 2, the corrected information meant that Ground 5 was not reasonably arguable.
5. Article 8. Applying the balance-sheet approach in Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin), the court assessed the changed circumstances for itself. Chechev had already served most of the sentence and was likely to be released shortly after return. Extradition would therefore be disproportionate and unlawful under section 21 of the Extradition Act 2003. His amended Ground 6 succeeded.

The stay on Ground 4 was lifted as academic. The renewed applications concerning Grounds 2 and 3 and the proposed amendment concerning Ground 5 were refused.

1. High Court (Administrative Court): On 26 February 2021, the court allowed Vangelov’s appeal on Ground 1 and Chechev’s appeal on Ground 6, while refusing or dismissing the remaining grounds: [2021] EWHC 427 (Admin).
2. High Court (Administrative Court): On 5 November 2020, an earlier hearing was adjourned and directions were given for further information from the Bulgarian authorities: [2020] EWHC 3115 (Admin).
3. Westminster Magistrates’ Court: District Judge Fanning ordered extradition on 2 October 2019 in relation to Vangelov and on 9 October 2019 in relation to Chechev.