VLADIMIR DOCHEV v DISTRICT PROSECUTORS OFFICE IN YAMBOL BULGARIA

In an extradition case, an Article 14 ECHR objection based on the risk of discriminatory failure to protect a gay prisoner must be assessed by examining whether the prison authorities would provide reasonable protection against inter-prisoner violence. Article 14 has a distinct operation when read with another Convention right, but that distinctness does not require a separate outcome where the alleged discriminatory act is the same failure of protection relied on under Article 3. The applicable extradition threshold remains a real risk, on substantial grounds, of a flagrant breach. A strong, rebuttable presumption of compliance by an EU member state with its Convention obligations may be displaced only by sufficiently cogent evidence.

The appellant sought permission to appeal against an extradition order made by District Judge Goldspring on 30 July 2021. He was wanted by Bulgaria pursuant to a conviction European Arrest Warrant concerning custodial sentences for drug offences. The appeal concerned alleged risks to him, as an openly gay man, in the Open Prison Hostel at Burgas Prison, particularly inter-prisoner violence and inadequate protection by Bulgarian authorities.

The district judge rejected claims under Articles 3, 8 and 14 ECHR. The renewed application raised whether Article 14 required a distinct analysis and whether the evidence showed a discriminatory failure of protection sufficient to bar extradition.

1. Renewed application refused. The appellant’s arguments were not reasonably arguable. The district judge was entitled to reject the Article 3, Article 8 and Article 14 objections.
2. The applicable extradition test for an Article 14 violation was a real risk, on substantial grounds, of a flagrant breach of Article 14, read with Article 3 or Article 8. There was no principled basis for applying a less exacting standard to extradition to a European state. The approach in Litwinczuk v Poland was inconsistent with the proposed lower threshold.
3. Article 14 has a separate and distinct operation when read with another Convention right. Nevertheless, where the alleged discriminatory act is a failure by prison authorities to provide reasonable protection against inter-prisoner violence, the sufficiency of that protection is the essential stepping stone. If the evidence establishes a risk of ill-treatment which the authorities would not reasonably prevent, an Article 3 case would succeed in any event. Article 14 would not materially alter that conclusion merely because the alleged failure was said to be discriminatory.
4. The evidence did not establish a systemic failure of reasonable protection, a relevant risk of inhuman or degrading treatment, or a discriminatory failure of protection. The expert evidence recorded no violence against gay prisoners at the hostel and did not support the inference that concealment of sexual orientation resulted from inadequate protective arrangements.
5. The strong, rebuttable presumption that Bulgaria would comply with its ECHR obligations applied equally to Article 14. The evidence could not rebut it. The refusal of an adjournment raised no viable appeal point, consistent with the approach discussed in Olah v Czech Republic.

• High Court (Administrative Court): District Judge Goldspring ordered extradition on 30 July 2021. The High Court refused the renewed application for permission to appeal on 7 July 2022.
• Permission stage: Permission to appeal had previously been refused by Sir Ross Cranston on 29 December 2021. The late service issue was resolved by an extension of time granted on 28 January 2022 in light of O’Connor [2022] UKSC 4.