ALEXANDER NIKOLOV v REGIONAL PROSECUTOR’S OFFICE – PAZARDZHIK (BULGARIA)

In extradition proceedings, the public interest in extradition carries great weight, but its weight varies with the nature and seriousness of the offence. The court must conduct a reasoned proportionality assessment under Article 8, identifying the factors supporting and opposing extradition and weighing them against the private and family-life rights engaged. There is no exceptionality test. A person who leaves a jurisdiction is not necessarily a fugitive in relation to an offence if, at the time of departure, no sentence or obligation relating to that offence was outstanding. A later activation of sentence does not retrospectively create that status. A sufficiently specific assurance concerning detention conditions may dispel a real risk under Article 3, even if supplied late.

The appellant challenged an order made by District Judge Zani on 2 July 2019 for his extradition to Bulgaria to serve a two-year sentence for a car offence. He had also received a probation penalty for a separate harvesting offence, but the district judge had discharged him on that offence because it was not an extradition offence.

The appeal proceeded on Articles 3 and 8 of the European Convention on Human Rights. The issues were whether a late Bulgarian prison-condition assurance was sufficient, whether the appellant was a fugitive in relation to the car offence, and whether extradition would be a disproportionate interference with the Article 8 rights of the appellant and his family.

1. Appeal allowed. The order for extradition was quashed under section 27(3) of the Extradition Act 2003.
2. The applicable version of the Extradition Act 2003 and the EAW Framework Decision was the unamended version, because the appellant was arrested before 11pm on 31 December 2020. This followed Zabolotnyi and Polakowski.
3. Under Norris and H(H), the public interest in extradition is always weighty, but its weight varies according to the nature and seriousness of the offending. There is no exceptionality test. The Article 8 question is whether the interference with private and family life is outweighed by that public interest. The interests of children are a primary consideration, but not the paramount consideration.
4. Celinski required a checklist approach: the decision-maker must identify the factors in favour of extradition, the factors against extradition, and reach a reasoned conclusion on proportionality.
5. The district judge made material errors concerning the sequence and legal effect of the sentences. The appellant had left Bulgaria after the suspension period for the car offence had expired. He was then in breach only of the probation penalty imposed for the harvesting offence, not of an outstanding suspended sentence relating to the car offence.
6. The principle in Wisniewski did not apply. The appellant was not a fugitive in relation to the car offence because, when he left Bulgaria, there was no punishment or obligation relating to that offence to evade. He was a fugitive in relation to the harvesting offence, but that offence was not extraditable.
7. On conducting the Article 8 balancing exercise afresh, the court found extradition disproportionate. The triggering breach was minor and arose from a trivial, non-extraditable offence. The car offence was comparatively minor, substantial time had passed, there had been respondent-caused delay, and the appellant’s family circumstances had materially developed.
8. The late Bulgarian assurance was accepted and was sufficient to dispel any Article 3 risk concerning prison space. The Article 3 ground therefore did not succeed.

• High Court (Administrative Court): Allowed the appeal against District Judge Zani’s extradition order dated 2 July 2019. The extradition order was quashed.