High Court refuses extradition appeal by Bulgarian man wanted in Romania for driving without licence



Lord Carloway
Lord Carloway

The High Court of Justiciary has refused to grant leave of appeal against the decision of a sheriff to extradite a Bulgarian man to Romania in order to serve a prison sentence there for driving without a licence.

Ilia Iliev, who was subject to a European Arrest Warrant issued under the Extradition Act 2003, argued that the sheriff could not order his extradition as a Swedish court had previously refused to allow it based on evidence of prison conditions in Romania.

The application was heard by the Lord Justice General, Lord Carloway, sitting with Lord Pentland and Lord Matthews. The appellant was represented by advocate Ximena Vengoechea, and the Crown by DJ Dickson AD, solicitor advocate.

Overcrowded prisons

The appellant was convicted in absentia by the Law Court of Arad, Romania, on 5 November 2015 and sentenced to one year’s imprisonment. An EAW was issued on 5 January 2016, after which he was detained in Nyköping, Sweden, in December 2016. The Nyköping District Court refused to order his extradition, as it considered there was a risk that he would be subjected to a treatment which would contravene Article 3 of the ECHR if he were to be extradited to serve a custodial penalty.

Romania had been given the opportunity to provide assurances that the appellant would not be subject to such treatment. They had only been able to guarantee that, for some of the custodial term, he would have a cell space of 2m2 instead of the minimum 3min multi-occupation cells which the European Court of Human Rights has deemed to be required.

Following a stay in his native Bulgaria, the appellant travelled to the UK to join his wife in May 2019. He was arrested on arrival at Edinburgh Airport and appeared at Edinburgh Sheriff Court on 10 May 2019. A hearing eventually took place in March 2020, at which the sheriff found that there were no bars to extradition.

In considering whether extradition would be Convention compliant, the sheriff heard from the appellant and considered two letters produced by the Crown, including one from a Romanian prison superintendent who stated that the majority of the appellant’s sentence would be served in an open security facility near the small town of Gãesti in southern Romania. Assurances were given that the minimum cell size requirement would be met. The sheriff ultimately concluded that the factors in favour of extradition outweighed those against it.

It was submitted for the appellant that the sheriff had prevented the appellant from obtaining objective evidence of Romanian prison conditions by refusing to adjourn the hearing. These conditions, according to ‘publicly available information’, were notorious for being over-crowded and violent. Further, as the Swedish court had already made a decision on extradition, any subsequent decision to extradite was barred by the plea of res judicata.

The respondent submitted that the appellant had failed to demonstrate arguable grounds of appeal, and that any new material would not have resulted in the sheriff deciding the question differently. Additionally, Romania had directly addressed the concerns raised by the Swedish courts by providing further assurances regarding the appellant’s prison conditions.

No specific basis for doubt

The opinion of the court was delivered by Lord Carloway. Noting the findings of an expert, Dr James McManus, on prison conditions in Romania, he said: “There is no doubt that there are serious problems in the Romanian prison system, as there are in those of many other European countries.”

However, he went on to say: “The existence of such conditions did not prevent the sheriff from accepting assurances from Romania that, in the particular case, the appellant would not be subject to inhuman or degrading treatment because, in his case, he would be accommodated in an Article 3 compliant space.”

On whether the court could accept Romania’s assurances, he said: “The judicial authorities in Romania have endorsed the assurances given in relation to the conditions in which the appellant will be kept. Although Dr McManus casts doubt on whether these assurances can be implemented and monitored, neither the sheriff nor this court have been provided with any specific basis upon which to doubt them in the appellant’s case.”

Turning to the res judicata argument, Lord Carloway said: “One of the features of the plea is that it prohibits the individual from having to defend or pursue matters repeatedly, when they have already been the subject of an earlier decision. Where it applies, it is likely to feature as a significant element if a person’s Article 8 right to respect for his or her private life were to be pled in defence to an application for extradition.”

He continued: “It is unfortunate in these circumstances that the appellant has expressly disavowed a submission based on Article 8. The court nevertheless considered whether, on the limited information which the court has been given, an argument based upon Article 8 could succeed. The answer is in the negative. The sheriff carried out the type of balancing exercise that is required and determined that the factors in favour of extradition outweighed those which were against.”

Lord Carloway concluded: “The appellant was a fugitive from justice. The sentence which has been imposed, although apparently draconian for this type of offence in Scottish terms, is a relatively short custodial term which is likely to be served mostly in an open prison. Although he has a wife and now a child in Scotland, the court was provided with very little detail about his personal circumstances other than, upon inquiry, that he does not have settled status in the United Kingdom. In all these circumstances, the court does not consider that this ground is arguable.”

For these reasons, leave to appeal was refused.

© Scottish Legal News Ltd 2021



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