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APPLICATION FOR LEAVE TO APPEAL UNDER SECTION 26 OF THE EXTRADITION ACT 2003 BY ILIA ILIEV [2021] ScotHC HCJAC_26 (31 March 2021)
URL: http://www.bailii.org/scot/cases/ScotHC/2021/2021_HCJAC_26.html
Cite as:
2021 GWD 14-210,
[2021] HCJAC 26,
2021 SLT 960,
[2021] ScotHC HCJAC_26
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2021] HCJAC 26
HCA/2020/08/XM
Lord Justice General
Lord Pentland
Lord Matthews
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in the application for leave to appeal under section 26 of the Extradition Act 2003 by
ILIA ILIEV
Applicant
against
HER MAJESTY'S ADVOCATE
Respondent
Appellant: Vengoechea; Good & Stewart
Respondent: DJ Dickson AD (sol adv); the Crown Agent
31 March 2021
Introduction
[1]
This is an application for leave to appeal against a decision of the sheriff at
Edinburgh on 12 March 2020 ordering the extradition of the appellant to Romania in terms
of a European Arrest Warrant issued under Part I of the Extradition Act 2003. Appeals are
governed by section 27. This provides, in summary, that the court may allow an appeal only
if the sheriff ought to have decided the question differently (s 27(3)) or a new issue is raised
or new evidence is available which would have had that result (s 27(4)).
2
Background
[2]
The appellant is a Bulgarian national. On 5 November 2015 he was convicted in
absentia by the Law Court of Arad, Romania of driving without a licence on 29 April 2015.
He was sentenced to one year's imprisonment. An EAW was issued on 5 January 2016.
[3]
On 28 December 2016 the appellant travelled to Sweden and was detained on arrival
at the port of Nyköping. On 26 January 2017 the Nyköping District Court (Tingsrätt)
refused to order his (Ilia Ilies Krasimirov's) extradition. The public prosecutor had informed
the court that there was a risk that the appellant would be subjected to treatment which
would contravene Article 3 of the European Convention in the event of his extradition 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 2m
2
instead of
the minimum 3m
2
in multi-occupation cells which the European Court of Human Rights has
deemed to be required (C-128/18 Proceedings concerning Dorobantu [2020] 1 WLR 2485 at
para 72).
[4]
The appellant returned to Bulgaria for a time. On 9 May 2019 he travelled to the
United Kingdom to join his wife, who is also a Bulgarian national. The EAW was still
extant. He was arrested on arrival at Edinburgh Airport and appeared at Edinburgh Sheriff
Court the following day.
The sheriff's decision
[5]
A hearing had been set down for May 2019, but the appellant failed to appear at the
preliminary hearing and an arrest warrant was issued. He appeared on 3 June and was
granted bail. There were multiple adjournments based upon a submission that the issue of
3
Romanian prison conditions insofar as relating to Article 3 of the Convention was going to
be resolved in a test case on appeal before this court. The issue was ultimately not raised in
that case (DV v Romania 2020 SCCR 355).
[6]
A hearing eventually took place on 12 March 2020. Meantime, the appellant had, on
11 September 2019, lodged a written case and argument. The only point raised in opposition
to the extradition was based on Article 3 and, as with the Swedish process, concerned
Romanian prison conditions. Reference was made to certain cases and to the Council of
Europe's 2019 report on Romanian prison conditions (Report to the Romanian Government on
the visit to Romania carried out by the European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (CPT) from 7 to 19 February 2018 (CPT/Inf
(2019) 7).
[7]
On the day of the hearing, the appellant's agent made several motions to adjourn
once again: first, on the basis that he required to explore the circumstances of, inter alia, the
previous extradition attempt in Sweden and one said to have taken place in the Czech
Republic; secondly, in order to seek legal aid sanction to instruct counsel; thirdly, to raise
any further bars to extradition that might emerge following the instruction of counsel; and,
fourthly, because the appellant had been refused legal aid to fund an independent report
into Romanian prison conditions. The motions were refused on the basis that they came too
late. The appellant's agents had had a copy of the Swedish decision for some eight months.
[8]
The Sheriff found that the offence was an extradition offence (2003 Act, s 10). It was
accepted by the appellant that there were no bars to extradition (s 11). These could have
included a contention that it would be unjust or oppressive to extradite the appellant by
reason of the passage of time since the commission of the offence. The sheriff proceeded to
consider whether extradition would be Convention compliant (s 21(1)). The appellant
4
testified that he was aged 44 and lived in St Andrew's with his wife. They had a daughter,
but she lived in Bulgaria. The appellant worked in a restaurant and his wife worked in a
laundry.
[9]
The respondent produced two letters. The first, dated 12 August 2019, was from a
judge of the Law Court of Arad. It provided details of the offence and the procedure which
had followed. It referred to making enquiries of Bulgaria about the appellant's whereabouts
and being told that he was serving a sentence of 42 months in the Czech Republic; Bulgaria
having refused to accommodate him for the purposes of serving a sentence which had been
imposed in Prague. The appellant denied ever having been in the Czech Republic. The
letter from Arad made reference to the Swedish proceedings.
[10]
The second letter was from a Prison Chief Superintendent, to the Romanian Ministry
of Justice, dated 13 August 2019. It stated that the appellant would initially be quarantined
for 21 days at Bucharest Rahova Prison. He would have a cell with a minimum space of
3m
2
. He would then be moved to a permanent location. In light of the length of his sentence,
this would probably be to an open security facility at Gãesti Prison. Gãesti is a small town in
southern Romania. The nature of the cells, and other facilities, was described in some detail
and an assurance was given that the minimum of a 3m
2
space would be met. The appellant
would have access to Bulgarian consular facilities.
[11]
The sheriff had difficulty in understanding whether the appellant's agent was
continuing to rely on the Article 3 point. The agent accepted that he had no evidence to
support his contention that the appellant's imprisonment in Romania would not be Article 3
compliant. The sheriff was satisfied that he could rely upon the assurances given by the
Romanian authorities. There was no evidence to the contrary. The appellant's agent had
5
raised Article 8 in his submissions on the basis that the extradition proceedings were an
"abuse of process" and precluded by the principle of res judicata.
[12]
The sheriff found that res judicata did not apply to extradition. Under reference to
Cel-Mare v Romania [2019] EWHC 1076 (Admin), which also involved a conviction of driving
without a licence, he carried out a balancing exercise and concluded that the factors in
favour of extradition outweighed those against it. Weight had to be attached to the strong
public interest in ensuring that extradition arrangements were honoured and that those
convicted should not escape punishment. The case involved a recent offence which had
resulted in the appellant's conviction. He was a fugitive from justice. Since his arrest in
Sweden, he had known that the case was being actively pursued by Romania. He had a
wife, but no child, in Scotland. The case could not be described as an abuse of process. It
was of little moment that the offence of which the appellant was convicted was treated more
seriously in Romania than it would have been in Scotland.
Submissions
Appellant
[13]
The ground in the application for leave to appeal is that extradition would be in
breach of Articles 3 and 8. The ground gives a brief narrative of the appellant's domestic
circumstances and the procedure in Sweden. Whether the appellant should be extradited
was res judicata. The further request to extradite was an "abusive process". There is no
mention of Romanian prison conditions
[14]
In the appellant's written submission, it was said that the Article 8 challenge was no
longer insisted upon.
6
[15]
The appellant maintained, first, that the sheriff's refusal to adjourn the hearing had
prevented the appellant from obtaining objective evidence of Romanian prison conditions.
These conditions, according to "publicly available information", were notorious for being
over-crowded, violent and below the standards to be expected of a Member State (Council of
Europe : "Report ... 2018 (CPT/Inf (2019) 7)). The assurance given meant that, excluding a
bed and furniture, the appellant would have a space of less than 3m
2
, which was the
minimum requirement (C-128/18 Proceedings concerning Dorobantu at para 72). There were
cogent reasons not to rely upon the assurances provided (Rezmive v Romania [2017] ECHR
378). Had the sheriff allowed expert evidence to be sought, he would have decided the
question of the appellant's extradition differently. The appellant had now obtained an
expert report on prison conditions in Romania and asked the court to have regard to it.
[16]
Secondly, 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 sheriff failed to
take into account the principle of mutual recognition and high trust among Member States.
Res judicata applied when there was duplication of the identity of parties, subject matter and
a final decision. It was designed to protect litigants and the courts from second (or
successive) actions which sought to re-litigate issues already decided and to prevent parties
from raising proceedings for the same cause ad infinitum. The appellant and Romania were
the opposing parties. The same parties and subject matter were before the Swedish court.
The decision of the Swedish court was final.
[17]
If res judicata did not apply in extradition proceedings then the concept of abuse of
process did (Auzins v Latvia [2016] 4 WLR 75 at para 37). Requests originating from the
same state, made to several other states, in relation to the same person and for exactly the
same offence may amount to an abuse of process. To hold otherwise would curtail the right
7
of a national of a member state to exercise his freedom of movement as guaranteed by
Article 21(1) of the Treaty on the Functioning of the EU. An appropriate balance had to be
Respondent
[18]
The respondent submitted that the appellant failed to demonstrate that there were
arguable grounds of appeal. The Council of Europe report had been available, but not
advanced, before the Sheriff. The appellant failed to meet the required test (s 27(4)(a)). The
new material would not have resulted in the sheriff deciding the question differently.
[19]
The mere existence of evidence that there were deficiencies, which may be systemic
or generalised, with respect to detention conditions in an issuing member state did not
necessarily imply that, in a specific case, the individual concerned would be subject to
inhuman or degrading treatment (C-404/15PPU Criminal Proceedings against Aranyosi
[2016] QB 921 at para 93). In a prison estate which has been found to be generally non-compliant
with Article 3, the requesting state could discharge its burden by giving an assurance that
the circumstances in which the person will be detained carried no real risk of inhuman and
degrading treatment (Ivoskevicius v Lithuania 2019 SCCR 225 at para [9]). Effective, reliable
and unequivocal assurances provided an appropriate mechanism for the provision of
Article 3 compliant conditions within a system of detention that was generally non
[20]
The principle of mutual trust required that judicial authorities rely on assurances
given by an issuing judicial authority, unless on clear and cogent evidence there are
substantial grounds for believing that the appellant would face a real risk of being subjected
to inhuman and degrading treatment (Jane v Lithuania (No 2) [2018] EWHC 2691 at para 9).
8
The reference to the Council of Europe report was insufficient to call the assurances into
question. The court ought to be satisfied that the assurance given in the letter of 13 August
2019 was effective, reliable and unequivocal.
[21]
There was no res judicata in extradition proceedings (Giese v United States of America
[2018] 4 WLR 103 at para 24). The institution of a second set of extradition proceedings
would not necessarily amount to an abuse of process. The exceptional plea of res judicata
was a residual relief "where the contention is that the prosecutor or judicial authority has
acted in bad faith, deliberately manipulating proceedings, undermining the statutory regime
to the unfair prejudice of the defendant" (Giese at para [29]). The 2003 Act provided wide
protections through the multiple bars to extradition. The appellant invoked the bar through
Article 3 compatibility. Romania had directly addressed those concerns by providing an
improved assurance.
The Expert Report
[22]
The appellant produced a report from James McManus dated 25 March 2021, having
been instructed on 1 March. Dr McManus has considerable experience of prison conditions
throughout the world. He was, for some years, the UK member on the European Committee
on the Prevention of Torture. Although he had not been to Romania, he had visited prisons
in many of its neighbouring countries, which had similar problems. His report is derived
from conversations with others and internet research. It covers many aspects of the
conditions in Romanian prisons; explaining that the best source of detailed independent
information is the 2019 Council of Europe report. Although not raised as grounds of
complaint either before the sheriff or in the grounds of appeal, the report covers ill treatment
9
by staff, inter prisoner violence, poor hygiene, inadequate food and a lack of medical
facilities.
[23]
Dr McManus's conclusion is that the Romanian prison system is one in "long term
crisis" which, because of lack of resources, cannot be resolved in the immediate future.
Improvements had been made but it was not able to guarantee the minimum European
Court standard of 3m
2
space for all prisoners. Substantial compensation payments had been
made to prisoners whose Article 3 rights had been breached. There would be particular
difficulties with the quarantine prison (Bucharest-Rahova) to which the appellant would
initially be sent. Only half of the cells there provided more than 3m
2
.
[24]
With the added complication of the current pandemic, Dr McManus concluded that:
"it is not possible to have confidence that the country can comply with Art 3 should
[the appellant] be extradited. His own situation, as a non-Romanian speaking,
foreign national and Roma, heightens the risks he would face were he to be sent to
Romania.
The Assurances given by the Romanian authorities would... prove very difficult to
implement and almost impossible to monitor".
Decision
Article 3
[25]
There is no doubt that there are serious problems in the Romanian prison system, as
there are in those of many other European countries. In Rezmive v Romania [2017] ECHR
378, the European Court of Human Rights adopted its pilot-judgment procedure in order to
identify the structural problems which existed and to indicate measures which should be
taken in order to address these. The procedure is also used to induce Romania to resolve, at
a domestic level, the large numbers of individual cases arising from the structural problem
(see paras 102 105). The Court had already issued a large number (150) of judgments
10
which found violations relative to Romanian prison conditions. It had previously issued
guidance to Romania in 2012. The Committee of Ministers had assessed the measures which
Romania had adopted and concluded that there continued to be a worrying state of affairs,
including overcrowding, in the majority of Romanian prisons. Although there had been
improvements, the Court stated that further measures were required. These were steps to
reduce overcrowding (para 115) and to provide adequate compensation for proven breaches
(para 125). Romania was required to provide a timetable for the implementation of these
measures.
[26]
The import of Rezmive is reflected in Dr McManus's report. The court has no reason
to doubt the general position in relation to Romanian prison conditions which Dr McManus
describes. The difficulty which remains for the appellant is two-fold. First, the material
which is contained in Dr McManus's report was available at the time of the hearing before
the sheriff in the form both of Rezmive and the Council of Europe report. The sheriff was no
doubt aware of the general conditions in Romanian prisons. Secondly, 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 (C-128/18
[27]
There is a presumption that Romania, as a contracting state, will abide by its
assurances. Its general failures might influence the court's decision on whether to rely on
these, but that would normally require to be tested by reference to previous compliance or
non-compliance. Proof of substantial efforts to improve the system could be evidence of
good faith and reliability (Ivoskevicius v Lord Advocate 2019 SCCR 225, LJC (Lady Dorrian),
delivering the opinion of the court, at para [9] and adopting Jane v Lithuania (No 1)
11
might be regarded with suspicion, "friendly foreign governments of states governed by the
rule of law", which included members of the European Union, did not fall into that category
Giese v United States of America [2018] 4 WLR 103, Lord Burnett LCJ at para 38). Where an
assurance is given or endorsed by a judicial authority, it should, as an aspect of mutual trust
between these authorities, be relied upon "at least in the absence of specific indications that
the detention conditions in a particular detention centre" infringe the relevant protections
[28]
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. Although some of the accommodation in Bucharest Rahova Prison is not
Article 3 compliant, some of it is. After the quarantine there, the appellant is likely to be in
open security conditions at Gãesti Prison. In these circumstances, given the requirement to
rely on assurances about the conditions in which the appellant will be detained, in the
absence of a reason not to do so (C-128/18 Proceedings concerning Dorobantu [2020] 1 WLR
2485 at para 54, following Criminal Proceedings against ML at para 111), an appeal based on
Article 3 would be bound to fail.
Res Judicata and Abuse of Process
[29]
The Extradition Act 2003 sets out a number of steps which the sheriff required to take
when deciding whether or not to allow the extradition to proceed. One of these (s 11) is to
12
consider whether there are any bars to extradition. It was accepted that none of these
applied to the appellant's case. Having ascertained that the appellant had been convicted in
absentia but would be entitled to a retrial or a review amounting to a retrial in the event of
extradition (s 20), the sheriff had to decide whether the appellant's extradition would be
compatible with his Convention rights (s 21).
[30]
In Auzins v Latvia [2016] 4 WLR 802 (Admin), the appellant, who was living in
England, had been arrested on an EAW during a visit to Scotland. The sheriff had declined
to order the appellant's extradition because of the inability of the Latvian prison service to
provide adequate facilities to treat what were serious medical conditions. The sheriff held
that, in terms of section 25 of the 2003 Act, it would be "unjust or oppressive to extradite
him". Three years later he was arrested on a new, but largely identical, EAW. By that time,
the required facilities were in place. The judgment of the court in England (Burnett LJ, with
whom Cranston J agreed) on the new application requires to be examined in some detail in
order to determine whether the approach in England would be adopted in Scotland.
[31]
Burnett LJ carried out (paras 24 et seq) a comprehensive review of the interaction of
res judicata, issue estoppel and abuse of process in English civil and criminal law. Humphrys
[1977] AC 1 had determined that issue estoppel had no place in the criminal law. Burnett LJ
concluded (at para 36) that the same should apply in extradition proceedings. In doing so,
he noted the terms of Article 3(2) of the Framework Decision 2002/584 and its reference to
double jeopardy only in connection with decisions of member states to acquit or convict (ne
bis in idem). He illustrated the problem by considering the situation in which extradition had
been ordered in Scotland but the person had absconded to England. He would not be
barred from rearguing his case "because of issue estoppel or some other aspect of res
judicata". Due regard would be had to the decision in the other jurisdiction but Burnett LJ
13
did not "accept that an estoppel arising from the application of res judicata would be
appropriate".
[32]
There remained the "abuse of process" jurisdiction. The court described this (at
para 44) as follows:
"The underlying purpose of the abuse jurisdiction in extradition cases is to protect
the integrity of the statutory scheme of the 2003 Act and the integrity of the EAW
system, as well as to protect a requested person from oppression and unfair
prejudice... [I]t becomes an abuse of process to raise in subsequent proceedings
matters that could have been dealt with in the earlier proceedings...".
The court observed (at para 46) that:
"circumstances relevant to a successful human rights argument may move on in a
requesting state so that an extradition would no longer be barred on human rights
grounds"
[33]
In Giese v United States [2018] 4 WLR 103, Lord Burnett LCJ was to revisit his dicta in
Auzins in circumstances in which an earlier extradition request had been refused because of
inadequate assurances on a particular matter and the extraditing state re-applied once
adequate assurances had been obtained. Standing Auzins, the matter was examined in the
context of the English abuse of process jurisdiction. Lord Burnett said:
"32.
The key... to cases where it is said that the requesting state failed in the first
set of proceedings such that the second set are an abuse of process is to make `a
broad, merits-based judgement which takes account of the public and private interest
involved and also takes account of all the facts of the case': see Johnston v Gore Wood
[33]... Such a broad, merits-based judgment should take account of the fact that there
is no doctrine of res judicata or issue estoppel in extradition proceedings.
33.
Underlying extradition are important public interests in upholding the treaty
obligations of the United Kingdom; of ensuring that those convicted of crimes abroad
are returned to serve their sentences; of returning those suspected of crime for trial;
and of avoiding the United Kingdom becoming (or being seen as) a safe haven for
fugitives from justice. The 2003 Act provides wide protections to requested persons
through the multiple bars to extradition, Parliament originally and through
amendment, has enacted. There are likely to be few instances where a requested
person fails to substantiate a bar but can succeed in an abuse argument".
14
[34]
Res judicata does have a place in Scots criminal law. As it is put by Alison: Practice (at
615):
"The plea of res judicata is good to form a bar to a new trial, if it appears that the
former one, whether it terminated in a conviction or acquittal, was bona fide raised
and regularly gone through before a competent Judge, that it related to the offence
which is now a second time brought sub judice, and if it proceeded though all its
stages, to a sentence condemnatory or an acquittal".
[35]
The same principle, which is essentially the prohibition on double jeopardy or the
principle of ne bis in idem, would no doubt apply in England and Europe albeit not using the
same generic description. Res judicata in a criminal process takes the form of a plea in bar of
trial. It also applies more generally to decisions taken in the course of a criminal process
where identical applications are made on the same grounds and relying on the same facts. In
the latter case, it is unlikely to gain traction where, as in the case of the appellant, there has
been a material change in circumstances which justify a different decision (eg Stewart v HM
Advocate 1997 JC 217). This appears also to be the position in Sweden in relation to improved
assurances (Case No O 6598-19, Supreme Court of Sweden 8 April 2010. In the case of
acquittals after trial, the plea is now subject to the exceptions in the Double Jeopardy
(Scotland) Act 2011.
[36]
"Abuse of process" is not a term in general use in criminal proceedings (Potts v
Gibson 2017 JC 194, LJG (Carloway), delivering the opinion of the court, at para [16]; Jones v
HM Advocate 2010 JC 255, Lord Carloway at paras [75] and [86]). The appropriate
categorisation is "oppression" which, rather like its English equivalent, will prohibit
proceedings which, in the trial context, amount to an "affront to justice". Whether it can be
established is a matter of facts and circumstances "including the Crown's conduct, the
15
seriousness of the charge and the public interest in securing that crime is prosecuted". In
situations which are analogous to, but do not entirely fit with, those which would fall to be
determined according to the principles of res judicata, it may be that a plea of oppression
would be sustained.
[37]
The plea of res judicata is not mentioned in the 2003 Act. As Lord Burnett explained
in Auzins, the Framework Decision's reference to double jeopardy, as reflected in section 12
of the Act, is only in connection with decisions of member states to acquit or convict (ne bis
in idem). However, as the Lord President (Cooper) described it in the civil context of Grahame
v Secretary of State 1951 JC 368 (at 387; adopted in RG v Glasgow Council 2020 SC 1 at
para [27]):
"The plea is common to most legal systems, and is based upon considerations of
public policy, equity and common sense, which will not tolerate that the same issue
should be litigated repeatedly between the same parties on substantially the same
basis".
[38]
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. Such an application, where there has already been a refusal to
extradite in the same or in another jurisdiction, on the same grounds and in the same
circumstances may be regarded as disproportionate in Article 8 terms. Whether it is so or
not would require an analysis of all the circumstances. In that event, the Article 8
determination is likely to subsume any arguments based upon an extra statutory plea of
oppression such that a separate decision on the latter would neither be necessary nor would
it be likely to succeed. In that respect the court agrees with the observations of Lord Burnett
16
in Giese v United States (at para 33). If an Article 8 plea were rejected, it is difficult to
envisage how a separate oppression or res judicata point could succeed.
[39]
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. On the one hand there was the public interest in ensuring that
extradition arrangements were honoured and that those convicted of crimes should not
escape punishment. 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.
[40]
Leave to appeal is therefore refused.
