Extradition to Bulgaria would not breach requested person’s human rights, appeal judges rule

Lady Dorrian
Lady Dorrian
A man who challenged a sheriff’s decision to order his extradition to Bulgaria over prison conditions in the country which claimed would breach his human rights has had his appeal refused.
The requested person claimed that he would face “inhuman or degrading treatment”, in breach of article 3 of the European Convention on Human Rights, but the Appeal Court of the High Court of Justiciary ruled that the assurances given by the Bulgarian authorities were “effective, reliable, unequivocal and binding”.
European Arrest Warrant 
The Lord Justice Clerk, Lady Dorrian, sitting with Lord Brodie and Lord Turnbull, heard that the appellant Mario Kurtev had lodged an appeal against a decision of the sheriff at Edinburgh to order his extradition to Bulgaria in terms of a European Arrest Warrant. 
It was a matter of agreement, as indeed had been found by the sheriff, that prison conditions in Bulgaria, and repeated and systemic failure of the authorities to improve these, created circumstances, which in the absence of specific and reliable assurances, would give rise to “substantial grounds” for believing that the appellant faced a “real risk” of being subject to inhuman or degrading treatment such as to contravene his rights under article 3 of the European Convention if he were to be extradited from the UK and then detained or imprisoned there. 
The sole question was whether “satisfactory assurances” had been given which might permit the sheriff to authorise extradition. 
The sheriff noted that specific assurances had been given, expressly in respect of the appellant, and that there was “no competent evidence” that Bulgaria had failed to honour assurances of the kind which had been given in the present case. 
On that basis, the sheriff ordered extradition and directed that a copy of his decision should be given to the Bulgarian authorities on surrender of the appellant to them in order that it be clear upon what basis the appellant was being returned.
‘Real risk of ill treatment’ 
The appeal turned on the extent to which there was a sound basis for believing that the assurances given by the Bulgarian authorities as to the conditions in which this appellant would be held if returned to Bulgaria would be fulfilled.
The appellant accepted that it was for him to show strong grounds for believing that if returned he would be exposed to a real risk of “ill treatment” at such level of severity as might breach his article 3 rights, and that there was a presumption, not easily displaced, that EU member states would fulfil their international obligations.
However, it was submitted that there was evidence from Stanimir Petrov, a member of the Bulgarian Helsinki Committee who regularly visited prisons in the country, that assurances have been breached in at least four cases.
The Bulgarian authorities required to provide case-specific assurances of compliance and they asked in which part of which institution the appellant would be kept. 
The response referred to Sofia prison but did not refer to which part thereof, nor did it rule out a transfer to another institution. 
It was also submitted that the photographs of the cells taken within Sofia prison cast doubt on the reliability of the assurances, as they seemed to show “VIP cells”, renovated by the prisoners themselves, having nothing in common with the rest of the cells in the prison.
‘Article 3 compliant conditions’
But the respondent submitted that the assurances given by the Bulgarian authorities in a letter dated 20 September 2017 unequivocally stated that the appellant would serve any sentence imposed in Sofia prison in “article 3 compliant conditions” and that no issue would arise about his being transferred to another prison. 
The letter stated that he would serve any sentence in a cell providing 4m2 personal space, a self-contained sanitary facility, adequate ventilation, bedding, with a right of one hour’s daily exercise and free movement within the corridor during the day to enable contact with fellow prisoners. 
Refusing the appeal, the judges considered that the assurances given in the letter were “specific and unequivocal”.
Delivering the opinion of the court, the Lord Justice Clerk said: “It is clear from material in the cases referred to, and in the latest report from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) that the Bulgarian authorities have been taking significant steps towards improving and modernising their prison estate, and have achieved some success in doing so. They continue to make improvements and renovations within the estate.”
The judges recognised that the failure to abide by assurances given in previous cases was “a matter of concern” but also noted that there had been only once recent breach, which was “swiftly corrected” once it was drawn to the attention of the authorities. 
Lady Dorrian added: “The evidence of Mr Stanimir Petrov showed that there are available within Sofia prison compliant conditions and that thus the Bulgarian authorities have the means of fulfilling the assurances given….We consider that there is a sound basis for believing that the assurances will be fulfilled. 
“Finally, the level of monitoring which is available, even on the evidence of Mr Petrov alone, suggests that fulfilment of the assurances is capable of being verified. In the circumstances we are satisfied that the assurances can be considered effective, reliable, unequivocal and binding and that the appeal must be refused.”

© Scottish Legal News Ltd 2020

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