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Cite as: [2016] EWHC 1401 (Admin)

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Neutral Citation Number: [2016] EWHC 1401 (Admin)
Case No. CO/340/2016 CO/2968/2015


Royal Courts of Justice
London WC2A 2LL
14 April 2016

B e f o r e :





And Between




Computer-Aided Transcript of the Stenograph Notes of
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Mr Joseph Middleton (instructed by Hodge Jones Allen) appeared on behalf of the Appellant Vasilev
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 ©

  1. MR JUSTICE MITTING: By a conviction European arrest warrant ("EAW") issued by the Public Prosecutor of Silistra, Bulgaria, on 9 July 2003, the extradition of Petrov Valentin Vasilev is sought to serve sentences of imprisonment totalling four-and-a-half years for offences of theft and burglary committed in 2001 and 2005. A sentence of two years' imprisonment for the 2005 offences imposed by the Regional Court of Silistra became final on 13 August 2007. A suspended sentence of two-and-a-half years' imprisonment imposed on 2 October 2002 for the 2001 offences was activated by the same court on the same date.
  2. The EAW was certified by the National Crime Agency ("NCA") on 22 July 2015. Vasilev was arrested on 6 August 2015.
  3. After a contested hearing his extradition was ordered by Senior Judge Riddle on 18 January 2016. The sole ground of challenge was that his extradition to Bulgaria would infringe his right under Article 3 European Convention on Human Rights ("ECHR") not to be subjected to inhuman or degrading treatment or punishment because of the conditions in which he would be required to serve his sentence of imprisonment in Bulgaria. In a detailed and careful reserved judgment the Senior District Judge determined that the presumption that Bulgaria would comply with Convention obligations had not been rebutted by the extensive material presented to him. Even if that were not the case, an assurance given on 7 September 2015 by the Bulgarian Deputy Minister of Justice could be accepted. In consequence, there were not substantial grounds for believing that Vasilev would face a real risk of being subjected to inhuman or degrading treatment or punishment in Bulgaria if extradited.
  4. Vasilev appeals against that decision on the sole ground that the Senior District Judge's decision that his extradition would not infringe his Article 3 rights was wrong.
  5. By a conviction EAW issued by the Public Prosecutor of Pazardjik, Bulgaria, on 11 July 2014 the extradition of Petar Stoimenov Nikolov is sought to serve a total sentence of one-and-a-half years' imprisonment imposed by the Regional Court of Pazardjik which became final on 17 March 2012 for two offences of driving a motor car without a licence committed on 5 October 2009 and 13 November 2011. For the first offence a sentence of probation for three years and administrative restrictions were initially imposed. The second offence occurred during the period of probation and administrative restriction. The total sentence comprised six months' imprisonment for the first offence and one year's imprisonment for the second offence to be served cumulatively.
  6. The EAW was certified by the NCA on 5 August 2014. Nikolov was arrested on 11 December 2014.
  7. After a contested hearing, at which he represented himself, his extradition was ordered by District Judge Blake on 18 June 2015. The sole ground of challenge raised before the District Judge was that his extradition would infringe his right to respect for his private and family life under Article 8 ECHR. No Article 3 issue was raised or evidence led about it. The sole ground of appeal is that his extradition would infringe his right not to be subjected to inhuman or degrading treatment or punishment under Article 3 ECHR. The requesting judicial authority does not object to the belated raising of this issue or to require Nikolov to justify the admission of evidence not adduced before the District Judge on Fenyvesi grounds.
  8. Permission to appeal has been granted in both cases. No facts specific to either appellant are relied on. Both raise the same generic challenge to extradition on a conviction EAW to Bulgaria. In each case assurances have been given by the requesting judicial authority in identical terms. The material put before the Senior District Judge in Vasilev's case, updated, without objection, to reflect subsequent developments, is that relied on by both appellants. Both appeals stand or fall together.
  9. The requesting judicial authority expressly accepts for the purposes of this appeal that, but for the assurances given, prison conditions in Bulgaria are such that there is a real risk that the rights of each appellant not to be subjected to inhuman or degrading treatment or punishment would be infringed by their extradition to Bulgaria by reason of the conditions in which they might be required to serve their sentence of imprisonment. A different stance was adopted before the Senior District Judge. It was successfully submitted to him that, notwithstanding the trenchant criticisms of prison conditions in Bulgaria to which I refer below, the presumption that Bulgaria would fulfill its obligations under Article 3 even in the absence of assurances was not rebutted. That argument is no longer advanced. Instead, the concession to which I have referred has been made. It has been rightly made. In consequence, it is not necessary to refer in the same detail to the extensive material on prison conditions in Bulgaria as it would have been if the issue had been live. All that need be cited is sufficient to permit the efficacy and reliability of the assurances to be assessed.
  10. The prison estate in Bulgaria has been an object of concern to the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) since the first of ten visits which it carried out to Bulgaria in 1995. It has, exceptionally, been the subject of a public statement by the CPT on 26 March 2015. Prior to 2015, the Strasbourg Court had found a breach of Article 3 ECHR on account of poor conditions of detention in Bulgaria in twenty-five individual cases. In Neshkov and Others v Bulgaria the Strasbourg Court adopted the pilot procedure and, in a judgment which became final on 1 June 2015, required preventative and compensatory remedies to be made available by 1 December 2016. Neither the CPT nor the Strasbourg Court adopt these measures save in cases of serious, unremedied, systemic deficiencies in prison conditions in the state concerned.
  11. According to Appendix 1 of the response of the Bulgarian Government to the report of the CPT dated 12 November 2015, there are eleven male prisons, one female prison and one correctional home in Bulgaria under the jurisdiction of the Ministry of Justice. On the basis of available space within a cell or dormitory of 4m² per person, the official capacity of the prison estate is 8,971. The prison population was 9,081 on 31 December 2012, 7,942 on 30 November 2014 and 7,527 on 3 June 2015. According to information supplied to the Committee of Ministers of the Council of Europe in February 2016, the total has now fallen to 7,408. There is no reason to doubt these figures. All but one of the male prisons contain both closed and open sections.
  12. The picture painted by the statistics suggests that the prison population is comfortably below the rated capacity of the prison estate. This has not, however, prevented serious overcrowding in the closed sections of some prisons, including the three visited by the CPT between 13 and 20 February 2015: Sofia, Burgas and Varna prisons. On the basis of government figures for the prison population on 30 November 2014 (the last date before the visit on which official figures were collated) the rated capacity of the closed sections of Sofia prison was 951 and occupancy 809 inmates. However, the CPT report and the Strasbourg Court's judgment in Neshkov put the rated capacity of the closed sections significantly below that figure. The rated capacity of the closed sections of Burgas prison was 244 and occupancy 602 inmates. The rated capacity of the closed sections of Varna prison was 270 and occupancy 439 inmates. By contrast, the open-type facilities at a each prison, including the three visited, were substantially under-used: at Sofia prison buildings with a rated capacity of 419 housed 196 inmates; at Burgas prison those with a rated capacity of 201 housed 178 inmates; at Varna prison those with a rated capacity of 296 housed 209 inmates.
  13. Overcrowding has not been the only problem. Very poor material conditions have been at least as serious. The prison estate comprises prisons built in the early 20th century and correctional facilities built for working prisoners under the communist regime. Until very recently their facilities had not been modernised. In consequence, many prisoners did not have access to lavatory facilities at night other than a bucket in a communal cell. That is still the case in some cells in some prisons. Ventilation, heating and access to daylight were, and in some cases still are, inadequate in many cells and dormitories. Many were and some still are infested with vermin. Hygiene is very poor in lavatories and kitchens.
  14. Useful summaries of the conditions in and before February 2015 (the date of the CPT visit) are provided in paragraph 13 of the CPT public statement and paragraphs 268 and 272 of the judgment of the Strasbourg Court in Neshkov. Paragraph 13 of the CPT report reads:
  15. "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."

  16. The paragraphs in Neshkov read:
  17. "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."

  18. The Bulgarian Government did not, and the requesting judicial authorities in these cases do not, dispute the thrust of these findings, though both maintain that the problems are being addressed and that improvements have already occurred. Even so, as the requesting judicial authorities accept, a UK extradition court could not order the extradition of an individual on a Bulgarian conviction EAW in the absence of assurances. Even if, on the most optimistic view, the Bulgarian closed prison estate is brought up to an acceptable standard by 1 December 2016, there would remain a real risk that an individual extradited would be subjected to inhuman or degrading treatment or punishment in the period before that. It follows that the Senior District Judge's conclusion that even without the assurances, the presumption that Bulgaria would fulfill its obligations under Article 3 in the case of Vasilev was wrong.
  19. The approach which the court must take in a prisons conditions case has now been authoritatively determined by the Court of Justice in Aranyosi v Higher Regional Court of Bremen Germany (5 April 2016). There is, as yet, no official English version of the judgment, but a comparison of an imperfect unofficial translation with the official French version leaves no room to doubt the court's decision on the approach which must be followed. Article 4 of the Charter of Fundamental Rights of the European Union prohibits torture and inhuman or degrading treatment by words identical to those used in Article 3 ECHR. The prohibition is therefore binding as a matter of EU law as well as UK domestic law under Section 6 Human Rights Act 1998).
  20. The Bremen Court posed the same questions in relation to an accusation and a conviction EAW. The following is a paraphrase of the questions: is the extradition of a person prohibited if there are serious grounds to believe that the person will be subjected to inhuman and degrading treatment or punishment in the requesting state; or, can or must the requested state rely for its decision on the giving by and receipt of assurances from the requesting state about the conditions of detention? The Bremen Court went on to ask whether the requesting judicial authorities were entitled to provide such assurances. (See paragraphs 40 and 63 of the judgment).
  21. The Court of Justice held that the questions should be considered together. It noted that the EAW system was based on the principle of mutual recognition and trust and that both were of fundamental importance to the creation and maintenance of an area without internal borders (paragraphs 77 and 78).
  22. Despite that, Article 4 of the Charter required the requested judicial authority to assess the risk of a breach of Article 4 of the Charter when deciding to surrender a person to the requesting judicial authority under an EAW (paragraph 85). The mere existence of the risk is insufficient to permit the requested judicial authority to refuse to execute an EAW. It must determine, in a "concrete and precise manner", whether there are serious grounds to believe that the real risk exists (paragraphs 92 to 94). To do so, it may request additional information from the requesting judicial authority, which must provide it within the deadline set out in Article 17 of the Framework Decision (paragraph 97). If the information received from the requesting judicial authority excludes the existence of a real risk that the person will be subjected to inhuman or degrading treatment, the requested judicial authority must extradite, without prejudice to the right of the requested person to challenge the conditions in which he is detained after extradition (paragraph 103).
  23. The answer given to the underlying issue posed by the Bremen Court's questions was given in a single sentence in the penultimate paragraph of the judgment. In the original French case it reads:
  24. "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."

  25. The informal translation of this sentence which we have is:
  26. "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."

  27. Put into language of the Strasbourg Court, the sentence would read:
  28. "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."

  29. Although the court was careful not to say so in terms, the implication behind its reasoning is unmistakable. If, having examined all of the evidence and materials presented, including the information and assurances given by the requesting judicial authority, the requested judicial authority concludes that there is a real risk that if extradited the requested person will be subjected to inhuman or degrading treatment or punishment in prisons of the state of the requesting judicial authority, extradition must be refused. It is also implicit in its decision that assurances can be relied upon by the requesting judicial authority. It did not identify the circumstances in which an assurance can lead to the conclusion that the risk can be "ruled out" or treated as "dispelling all doubts". That question can only be answered by reference to Strasbourg and domestic jurisprudence.
  30. The approach to be adopted to assurances given by an EU Member State in extradition proceedings was exhaustively analysed by this Court in GS v Hungary [2016] EWHC 64 (Admin) at paragraphs 18 to 27. It is unnecessary to repeat the analysis here. The approach which can be distilled from it is as follows:
  31. 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.

  32. I turn to the assurances given in this case, which have evolved over time.
  33. On 13 August 2015 Hristo Ivanov, then Bulgarian Minister of Justice, signed and sealed an ordinance which amended an ordinance of 30 May 2009 as follows:
  34. "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."

  35. On 7 September 2015 Andrei Yankulov, then Deputy Minister of Justice, signed the following declaration:
  36. "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."

  37. The reference to the order of the Minister of Justice dated 13 August is to the ordinance which I have cited.
  38. The declaration made by the Deputy Minister states the following:
  39. "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."

  40. Again, the reference to the order of the Minister of Justice is to the ordinance cited.
  41. On 23 November 2015 the Crown Prosecution Service asked for a response to three questions:
  42. "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."

  43. That provoked the following response on 1 December 2015 signed and sealed by the Deputy Minister:
  44. "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."

  45. In an attempt to put the matter beyond doubt in relation to the two cases of the appellants whose appeals we are hearing, the Crown Prosecution Service on 13 April 2016 sent a lengthy email to the Bulgarian Minister of Justice explaining what was happening and invited a response to the question whether if this court decided to dismiss the appeal on the understanding that the assurances would apply to the two appellants then they would indeed apply. A response was given by Dimitri Terziivanvov, a senior expert at "International Legal Co-operation and European Affairs" Directorate, Minister of Justice, Sofia, Bulgaria, as follows:
  46. "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."

  47. In Vasilev's case the Senior District Judge was only provided with a letter of the Deputy Minister of 7 September 2015 and its enclosed declaration. He considered them by reference to the Othman factors and, having done so, concluded that the assurance should be accepted. The submissions made to us have been far more extensive than those made to the Senior District Judge and the material which he had has been significantly supplemented. In those circumstances I would address the issue afresh rather than conduct a line-by-line analysis of his reasoning.
  48. The starting point is that Bulgaria is a EU Member State and a category 1 territory. The Member States of the European Union and other states within the European Economic Area which are parties to the Framework Decision accept as one of the four founding principles of the European Union that its citizens must be free to move between Member States. The importance of this principle was recognised in the context of extradition by the Court of Justice in Aranyosi (paragraphs 77 and 78 of its judgment). If, because of shortcomings in the prison conditions of one Member State, other Member States cannot extradite criminals convicted in that State, all will become a place of sanctuary for them and they will be unable to do anything about it. The long-term consequences for the rule of law, and so the upholding of the rights of non-criminal citizens of the Union cannot but be adverse.
  49. There are two means by which these adverse consequences can be avoided. First, and principally, the rapid improvement of prison facilities in the requesting state under the supervision of the competent regional authorities, the Strasbourg Court, the Committee of Ministers of the Council of Europe and the CPT.
  50. Secondly, great weight must be given to the principle of mutual recognition and trust between requesting and requested judicial authorities and the States of which they are part. Unless there is cogent reason to disbelieve an assurance given by a category 1 state, the assurance must be accepted. The end result may be anomalous and even unprincipled. A convicted criminal who does not leave the territory of the State in which he is convicted may have to serve his sentence in conditions which infringe Article 3 ECHR and Article 4 of the Charter, whereas a criminal who leaves the territory of that State will benefit from better conditions because of the assurance which has been given in his case. But the anomaly is a small price to pay to uphold two fundamental principles: freedom of movement and the right of the individual concerned not to be subjected to inhuman or degrading treatment of punishment. And it is the only way in which, for the time being, the two principles can be reconciled.
  51. The next question to be considered is the terms of the assurance, including the second Othman question, whether the assurances are specific or are general and vague. These assurances, taken together, are not vague and are specific. They are given against the legal obligation set out in the ordinance of 13 August 2015. It sets out the requirement of the Minister of Justice that persons extradited to Bulgaria under and EAW shall be distributed to prisons which "provide the necessary conditions for these people to serve their punishments that would in no way violate Article 3 ..... " There is no lack of clarity in that wording. The words which precede those cited in quotation marks do no more than require the possibility for prisoners to serve their punishment in prisons in their home areas to be considered and to take account of the number of prisoners and conditions in such prisons. But the clear overriding legal obligation is to house them in prisons in conditions which do not violate Article 3. The ordinance is conditional on their being handed over to the Bulgarian State on terms that it would guarantee that their accommodation would comply with the minimum European standards, an issue which I address separately below.
  52. The declaration accompanying the Deputy Minister's letter of 7 September 2015 is also specific. It promises that surrendered individuals will be allocated to prisons which provide accommodation conditions which are compliant with Article 3 as well as minimum European standards. They are then spelt out: sleeping places will provide a total of 4m² per person, direct access to daylight, natural ventilation and an individual toilet. The suggestion that the phrase "a possibility for natural ventilation" - which I accept is an accurate translation of the Bulgarian original - is merely speculative is misplaced: it clearly means that the facilities of a cell will provide a means of securing natural ventilation by, for example, opening a vent or window. It is true that the amount of daylight, artificial lighting, heating and ventilation will be determined according to Bulgarian standards for public buildings but there is no reason to suspect, let alone believe, that those standards will be such as to permit conditions which infringe the Article 3 rights of prisoners in these respects.
  53. The problems in the Bulgarian prison estate do not result from inadequate national standards for public buildings but from the long-term practical neglect of prison facilities, as the paragraphs cited from the CPT report and the judgment of the Strasbourg Court in Neshkov make plain. This assurance too is conditional, and I address that issue below.
  54. The next question which must be determined is whether or not the assurances bind the Bulgarian State at all relevant levels. The simple answer is that they do. In his letter of 1 December 2015 the Deputy Minister said so in terms. Further, the ordinance of 13 August 2015 on which the assurances are founded expressly assigns implementation to prison governors ("prison wardens") and the director general of the body immediately responsible for prisons - The Execution of Punishments General Directorate.
  55. The e.mail sent today by Dimitri Terziivanov covers an area which is within his competence, the interpretation of Bulgarian law. It satisfies me that, taken together with the earlier assurances,they will be treated by the Bulgarian authorities as applying to both appellants.
  56. The next question is whether or not the assurances are reliable or, put more precisely, whether the presumption that the assurances will be fulfilled has been rebutted. The public statement of 26 March 2015 by the CPT contains the following statement:
  57. "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."

  58. Mr Josse QC and Mr Middleton rely principally on this statement to assert that the assurances cannot be relied upon. The fact that Bulgaria has repeatedly failed to act on CPT recommendations and to fulfill repeated general assurances about prison conditions is clearly relevant to the assessment of specific assurances given in relation to a number of identified individuals, but it is not determinative. Of greater significance, in my opinion, is the track record of Bulgaria in dealing with the cases of individual prisoners whose applications have been upheld by the Strasbourg Court. The report of the meeting of ministers' deputies (of the Committee of Ministers of the Council of Europe) on 8-10 March 2016 reviewing implementation in the Kehayov group of cases and Neshkov provides an up-to-date summary. The deputies found that no further measures were necessary in nineteen older cases and that in the seven remaining cases concerning prison conditions Bulgaria had either done what the Strasbourg Court required or (in one case) was no longer required to do anything because the individual had been released from prison.
  59. These instances demonstrate that the Bulgarian State can fulfill its obligations in relation to a number of identified individuals. This is unsurprising because the statistical evidence about the capacity and population of individual closed prisons produced to the Committee of Ministers of the Council of Europe on 23 February 2016 demonstrates that prisoners can readily be housed in prisons with adequate personal space and facilities. Of the closed sections of eleven male prisons, only four house more inmates than their rated capacity: Burgas, Varna, Vratsa and Pazardzik prisons and possibly Sofia in addition.
  60. In information supplied to the Committee of Ministers of the Council of Europe on 12 January 2016, the Bulgarian Government stated that in seven prisons the majority of cells contained toilets. There is no reason to doubt this statement. Two of the prisons which did not have toilets in the cells are amongst the four with inadequate space, Burgas and Varna prisons. Two were not. It follows that in five or - if Sofia prison is included - four out of the eleven male prisons with closed sections both adequate space and a cell toilet are available. None of the three prisons visited by the CPT in February 2015 are amongst those five. These objective factors suggest that the assurances are both given in good faith and can be fulfilled. It is significant that in no case cited to us has it been alleged, still less established, that the Bulgarian authorities have not fulfilled a bilateral assurance about an extradited person given to an EU Member State.
  61. All of this satisfies me that the presumption that Bulgaria will honour its assurances has not been displaced.
  62. The assurances make no mention of the violence by staff in prisons, corruption or medical care. Mr Josse submits that the omission is significant and goes to undermine the reliance which can properly by placed on the assurances. There is no doubt that violence of both kinds is, and for many years has been, a problem at Sofia, Burgas and Varna prisons as the CPT reports of 2012, 2014 and 2015 make clear. There is no doubt also that systemic violence in prison is capable of giving rise to an issue under Article 3 ECHR or Article 4 of the Charter and even crossing the high threshold in each case which must be reached before extradition could be prohibited.
  63. But the material which we have suggests that the problem is most acute at the three named prisons. There is no material which suggests that it is of such severity as to give rise to a breach of Article 3 or Article 4 in other prisons. Because, if the assurances are fulfilled, it is inconceivable that the appellants could be housed in the near future in any of the three named prisons, the risk of violence to the appellants does not, on any view, reach the level of a real risk in circumstances which would give rise to a breach of Article 3 or 4. Nor can corruption as such give rise to such a risk. Nor does the understaffed provision of medical care do so. There is to need therefore for assurances to be given in respect of those issues.
  64. The assurances are unusual in that they are conditional on the relevant United Kingdom judicial authority making it clear that a guarantee of Article 3-compliant treatment is required before an individual requested person can be extradited. On the facts of this case that condition is amply fulfilled.
  65. Because it has been suggested that the requesting judicial authority requires an express statement by the United Kingdom court to be given so as to accompany the surrender of the requested person, I would propose that a copy of this judgment is transcribed, if my Lord agrees, and that, if he agrees with my view as to the manner in which this appeal should be determined, it accompanies the appellants when their surrender is effected.
  66. Mr Middleton submits that such a surrender would be a creature unknown to English law - a conditional extradition. The answer to that proposition is simply that it is not. It is an ordinary surrender based upon assurances given and accepted in relation to appellants.
  67. For the future, I would propose that district judges should make it clear in their written judgment that extradition to Bulgaria under the terms of these assurances would not have been ordered but for the fact that the assurances apply to the requested person whose case is in issue and that a copy of that judgment (if necessary underlined or emphasised) will be given by the NCA to the Bulgarian authorities on surrender. Further, to ensure that there is no doubt about the matter, the CPS should, as the agent of the requesting judicial authority, make it clear to them in each individual case that extradition would not have been ordered but for the fact that the court accepted the assurance and accepted that it was given in respect of the individual whose extradition is ordered.
  68. For those reasons I would dismiss these appeals.
  70. Were it not for the guarantee provided by the Bulgarian Ministry of Justice relating to the conditions in which they will be detained, neither of these appellants could have been surrendered. Their rights guaranteed by Article 3 ECHR would have been at real risk of being breached. If the Ministerial guarantee had not applied to these appellants the appeals would have been allowed and their discharge ordered. However, for the reasons given by my Lord Mr Justice Mitting, I am satisfied that the guarantees apply and in those circumstances that these appeals fall to be dismissed.
  71. Mr Josse, are there any ancillary matters with which we need to deal?
  72. MR JOSSE: Not that I am aware of, my Lord.
  73. LORD JUSTICE BURNETT: Through you, can I be reminded of when the district judge is proposing to hand down judgment in the next - - - - - ?
  74. MR JOSSE: 20 April. In other words, next Wednesday afternoon.
  75. We had discussed - when I say "we" I mean Mr Hearn, Miss Draycott and myself - the various consequences and options so far as today is concerned. For what it is worth, I have notified all the advocates who, in effect, I was leading in that joint case, because none of them appear in this case, that this hearing was happening. There were a number of possibilities, including a reserved judgment.
  76. Given what has now happened - and of course I will need to discuss it with those for the judicial authority as well as, to some extent, the junior advocates whom I was leading because we clearly need to tell District Judge Ikram immediately (certainly tomorrow morning) the outcome of this particular hearing - could the court give any indication as to when these judgments are likely to be transcribed. (Pause)
  77. LORD JUSTICE BURNETT: On Monday we can get them. (Pause)
  78. MR JOSSE: Mr Hearn tells me something I did not know which is that, very sensibly, the CPS wrote to District Judge Ikram yesterday to tell him that this appeal was taking place. They should have copied me into that. Either way, they have done the right thing.
  79. LORD JUSTICE BURNETT: I very much hope the transcript can be got to us on Monday. (I appreciate that the transcriber has much to do, but let us hope that happens). My Lord and I should be able to turn it around on Monday if we get it. If we are able to do that, ordinarily there is then another stage in to-ing and fro-ing. But in the circumstances what I can say is that I will make sure that District Judge Ikram has a copy at the earliest opportunity because it is not impossible either that he will think it appropriate to invite some further submissions and it is not impossible that collectively the parties may think it appropriate to suggest that he hear further submissions.
  80. MR JOSSE: Let me put it like this, I will be surprised if I am not encouraged by the junior advocates to do precisely that.
  81. LORD JUSTICE BURNETT: I express no view on those matters because, strictly speaking, it is not a matter for us.
  82. MR JOSSE: No.
  83. LORD JUSTICE BURNETT: Mr Middleton, I think, wants to add something.
  84. MR MIDDLETON: It was a point that Mr Justice Mitting referred to right at the end of the judgment; that was the point that my Lord's careful reasoning will be set out in the judgment, that if I were to pursue it I would be very much reassured if I knew that the CPS were going to send a very short simple e.mail and other communication confirming that this extradition is done on the understanding that the assurances comply, so they do not have to go into the text of any judgment and find relevant passages.
  85. MR HEARN: Even prior to today that was what the intention of the Crown Prosecution Service. In the light of what is said, I give that undertaking.
  86. MR MIDDLETON: I think I need an assessment of our costs.
  87. LORD JUSTICE BURNETT: Yes. It is not that I want to deflect you from an undertaking but an undertaking is a formal matter that would need to be reflected in an order. Just an indication, I am sure, would satisfy Mr Middleton.
  88. MR MIDDLETON: That understanding. I believe I need an assessment of our costs.
  89. MR JOSSE: Since I have been doing this work I have never made that request and never not been paid.
  90. LORD JUSTICE BURNETT: Perhaps it is unwise to tempt fate. I do not actually think
  91. a form of order from us is necessary because you have a representation order, do you not? But should you run into any difficulty, we will make good any deficiency.

  92. We are immensely grateful to all of you for all the hard work that has gone into this, and in producing skeleton arguments and materials which enabled us to be fully on top of all the points before we started.

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