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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Vasilev v Regional Prosecutor's Office, Silistra, Bulgaria  EWHC 1401 (Admin) (14 April 2016)
Cite as:  EWHC 1401 (Admin)
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QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
MR JUSTICE MITTING
|REGIONAL PROSECUTOR'S OFFICE, SILISTRA, BULGARIA
|REGIONAL PROSECUTOR'S OFFICE, PAZARDJIK, BULGARIA
Trading as DTI Global
A Merrill Communications Company 165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr David Josse QC and Mr Azize Chelliah (instructed by A-Z Law Solicitors) appeared on behalf of the Appellant Nikolov
Mr Nicholas Hearn and Miss Natasha Draycott (instructed by Crown Prosecution Service) appeared on behalf of the Respondents
Crown Copyright ©
"13 The material conditions at Sofia, Burgas and Varna prisons remained characterised by an ever-worsening state of dilapidation. In particular, most of the sanitary facilities in these three prisons were totally decrepit and unhygienic, and the heating systems functioned for only a few hours per day. The majority of prisoners still did not benefit from ready access to a toilet during the night and had to resort to buckets or bottles to comply with the needs of nature. The kitchens at Burgas and Varna prisons (and the dining hall at Varna prison) remained filthy and unhygienic and infested with vermin, with leaking and overflowing sewage pipes, and walls and ceilings covered in mould. Most parts of the establishments visited were unfit for human accommodation and represented a serious health risk for both inmates and staff. To sum up, in the Committee's view, the material conditions alone in the three prisons visited could be seen as amounting to inhuman and degrading treatment."
"268 ..... While the breaches in these cases, and in the present case, related to various detention facilities, the underlying facts were very similar. The most recurring issues were lack of sufficient living space, unjustified restrictions on access to natural light and air, poor hygiene, and lack of privacy and personal dignity when using sanitary facilities. The breaches were therefore not prompted by isolated incidents or the particular turn of events in each individual case; they originated in a widespread problem resulting from a malfunctioning of the Bulgarian penitentiary system and insufficient safeguards against treatment incompatible with Article 3 .....
272 The systemic problem underlying the breach of Article 3 of the Convention found in this case is of considerable magnitude and complexity. It does not stem from a particular legal provision or single other cause but from a plethora of factors. Some of these, such as the insufficient capacity of the Bulgarian correctional facilities and their obsolescence and poor state of repair, may chiefly be attributed to the protracted lack of investment by the authorities in the penitentiary system's facilities. Others, such as the lack of ready access to the toilet for inmates at night, appear to be due to the physical characteristics of the correctional facilities, the inmate management practices followed in them, and perhaps an insufficient number of guards."
"104 ..... Si l'existence de ce risque ne peut pas être écartée dans un délai raisonnable, cette autorité doit décider s'il y a lieu de mettre fin à la procédure de remise."
"If the existence of this risk cannot be ruled out in a reasonable time, the authority has to decide whether it should terminate the surrender procedure."
"If the requesting judicial authority cannot dispel all doubts within a reasonable time, the requested judicial authority must decide whether it should refuse to order the extradition of the requested person."
i) Assurances can in principle be accepted;
ii) The factors identified by the Strasbourg Court in Othman v United Kingdom should be considered, but are not a "tick list";
iii) The fact that an assurance is given by a territory designated for the purposes of Part 1 of the Extradition Act 2003 by an order made by the Secretary of State under Section 1 (1) is a highly relevant factor;
iv) In the case of an assurance given by such a State, there is a rebuttable presumption that it can be relied upon;
v) There is no requirement that an assurance must contain any particular form of words or promise; what matters is whether or not the assurance "dispels all doubts" about the existence of a real risk of inhuman or degrading treatment if the requested person is extradited.
"With an ordinance of the Director General of the Execution of Punishments General Directorate, persons handed over to the Bulgarian state in pursuance of European arrest warrants shall be distributed in prisons, reformatory institutions and prison-type facilities following evaluation of the possibilities for convicts to serve their punishments according to their permanent residence address on the territory of the Republic of Bulgaria and the current possibilities at the places of legal confinement to provide the necessary conditions for these people to serve their punishments that would in non way violate Art 3 of the European Convention on Human Rights and Fundamental Freedoms if their handing over was performed under the condition that the Bulgarian state would guarantee their accommodation in locations complying with the minimum European standards.
I hereby assign the implementation of the ordinance to prison wardens, directors of reformatory institutions and prison-type facilities and the supervision of implementation - to the Director General of the Execution of Punishments General Directorate."
"In connection with the proposal of the Extradition Unit of the UK Crown Prosecution Service on the issuing of a general guarantee concerning the accommodation conditions o f persons surrendered to the Bulgarian judicial authorities on the basis of a European arrest warrant, the Ministry of Justice is sending a declaration concerning the accommodation conditions of persons surrendered to the Bulgarian judicial authorities on the basis of a European arrest warrant, as well as a copy of the order of the Minister of Justice, no. LS-04-1163, dated 13.08.2015, which lays down the procedures for accommodating such persons.
This declaration relates to cases where the corresponding competent authority of the state executing the EAW has explicitly sent a request for the provision of guarantees regarding the fact that the accommodation in which a person is held meets the minimum European standards."
"In connection to the required guarantees on the accommodation conditions for individuals wanted by the Republic of Bulgaria based on a European arrest warrant after their possible surrender to the Bulgarian judicial authorities, the Ministry of Justice hereby declares that in such cases the surrender of individuals will be allocated to penitentiary establishments that provide accommodation conditions in compliance with Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as with the minimum European standards. That way, the individuals will be accommodated in prisons and prison dormitories that are in line with the minimum European standards. The sleeping places that will house the surrendered individuals shall provide a total of 4 sq. m. per individual, direct access to daylight, a possibility for natural ventilation, and an individual toilet. The amount of daylight, the degree of artificial lighting, hearing and ventilation shall be determined according to the requirements of the respective national standards for public buildings.
The obligation to provide accommodation for the abovementioned individuals in penitentiary establishments under the conditions, set out in Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, is set out in Order JIC-04-1163 by the Minister of Justice, dated August 13, 2015.
This declaration is applicable to cases where the respective competent body in the country executing the European arrest warrant has made an explicit request for the provision of guarantees in relation to the accommodation of said individual under conditions that fit the minimum European standards."
"1 Can you confirm the assurances offered by the Deputy Minister of Justice Andrei Yankulov and he is in a position to bind the relevant prison authorities in Bulgaria?
2 Please confirm that the assurance applies to all persons surrendered from the UK to Bulgaria until further notice.
3 The assurance states that the declaration applies to cases where the corresponding competent authority executing the EAW has explicitly sent a request for the provision of guarantees. Please confirm that you are content for that request to accompany the physical surrender of the individual to Bulgaria. Please confirm you are content for the request to be communicated from central authority to central authority and the format that you would like the request to be made in."
"In connection to the request for the provision of additional information regarding the declaration sent to the United Kingdom Crown Prosecution Service with our letter ..... dated 07.09.2015, the Ministry of Justice would like to inform you about the following:
I have give the assurance in the letter cited above in a capacity of Deputy Minister of Justice in the position to bind the relevant prison authorities in Bulgaria.
We confirm that the assurance applies to all persons surrendered from the UK to Bulgaria in cases where express guarantees are requested by the competent UK authorities.
We do not require a special format of such requests yet it has to be formulated precisely that the person has been surrendered by a competent UK authority to the competent Bulgarian authority under specified conditions. This could be preferably done in written form during the physical surrender of the person to Bulgaria and is possible to be transmitted from central authority to central authority."
"I present you a brief explanation of the term 'competent authority' under the Declaration of the Ministry of Justice of the Republic of Bulgaria on the living conditions in Bulgarian prisons.
The term used is very broad and does not refer strictly to the competent authority, designated under Article 6 (3) of the Framework Decision. It only refers to the competent authority according to the national law of the executing M[ember] S[tate]. This being said, it could be the court of first instance or court of appeal or even a prosecutor's office. In consideration of the above we would like to confirm that the Ministerial guarantee applies to both cases."
"17 In its previous reports, the Committee has taken due note of the repeated assurances given by the Bulgarian authorities that action would be taken to improve the situation of persons placed in the custody of the police, or held in establishments under the responsibility of the Ministry of Justice. However, the findings of the 2015 visit demonstrate again that little or nothing has been done as regards all the above-mentioned longstanding problems. This state of affairs highlights a persistent failure by the Bulgarian authorities to address most of the fundamental shortcomings in the treatment and conditions of detention of persons deprived of their liberty, despite the specific recommendations repeatedly made by the Committee. The CPT is of the view that action in this respect is long overdue and that the approach to the whole issue of deprivation of liberty in Bulgaria should radically change."
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