Case No: CO/2626/2011
Neutral Citation Number: [2011] EWHC 2335 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
On appeal from District Judge Riddle sitting at
City of Westminster Magistrates Courton 17 March 2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 09/09/2011
Before :
LORD JUSTICE PITCHFORD AND MR JUSTICE SUPPERSTONE
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Between :
SOFIA CITY COURT, BULGARIA / Appellant- and -
DIMINTRINKA ATANASOVA-KALAIDZHIEVA / Respondent
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(Transcript of the Handed Down Judgment of
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John HardyQC and Rachel Scott (instructed by Crown Prosecution Service) for theAppellant
Ben Watson (instructed by Hallinan Blackburn Gitting & Nott) for the Respondent
Hearing date: 8 July 2011
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Judgment
As Approved by the Court
Crown copyright©
Lord Justice Pitchford :
- This is the judgment of the court. The respondent, Dimintrinka Atanasova-Kalaidzhieva is the subject of a European Arrest Warrant (“EAW”) issued by the Sofia City Court, the appellant issuing judicial authority (“the IJA”), on 26 March 2010. On 17 March 2011 Senior District Judge Riddle, sitting at City of Westminster Magistrates Court discharged the respondent from the extradition proceedings brought under Part 1 of the Extradition Act 2003 on the ground that the request constituted an abuse of the process of the court. The IJA appeals against that decision under section 28 of the Extradition Act 2003.
Summary of background
- This is the second time that Bulgaria has sought the extradition of the respondent. The remarkable background to the proceedings is as follows. The respondent is the former private secretary to the Bulgarian Prosecutor General to whom we shall refer as Filchev. The EAW alleges that in February 2000 the respondent was principal in an offence of murder committed as a joint enterprise with Plamen Kalaydjiev (her former husband), Orlin Avramov, and Nikolai Kolev. It is alleged that the conspirators met at the Kalaydjiev home where it was agreed that they would proceed to an apartment occupied by Ms Nadazheda Georgieva where Ms Georgieva would be killed. Ms Georgieva was also a secretary to Prosecutor General Filchev. The prosecutor’s case is that Nikolai Kolev, also a senior Bulgarian prosecutor, gave advice to the conspirators as to how to remove evidence of the killing. It is alleged in the EAW that he “offered them protection after the murder, speaking up for them and building an alibi in view of his influence as Prosecutor at the General Prosecution [sic] of the Republic of Bulgaria”. The EAW continues that, pursuant to the arrangements made, the respondent together with Kalaydjiev and Avramov entered Ms Georgieva’s flat and, while Kalaydjiev and Avramov held her down, the respondent killed Ms Georgieva with a weapon akin to a butcher’s cleaver. It is alleged that following the murder Ms Georgieva’s lawyer’s bag containing documents, a dictaphone, cassettes with recordings, a Motorola mobile telephone and the sum of $4,000 was stolen. The allegation of theft is a late addition to the case against the defendants. Mr Filchev has been variously referred to in the papers as Prosecutor General, Chief General Prosecutor, and Bulgarian Chief Prosecutor. We shall continue to refer to his office as that of Prosecutor General.
- It is the respondent’s assertion that she has no personal knowledge of the murder of Ms Georgieva. She believes that she is the victim of a campaign by former Prosecutor General Filchev against Nikolai Kolev, herself and others to frame them for the murder. Mr Filchev was Prosecutor General for Bulgaria between 1999 and 2006. He is associated with the former communist party in Bulgaria. There have been consistent and prolonged allegations against Mr Filchev of corruption in public office. The following allegations have been widely reported in the Bulgarian press, television and other media: that he used his position to protect his brother from accusations of fraud; blackmail of magistrates, politicians and journalists; acceptance of bribes; corrupt prosecution of his political and business opponents, including former Supreme Court Prosecutor Nikolai Kolev. As Prosecutor General Mr Filchev was immune from prosecution. In 2001 and 2002 there was a trial of strength between the Ministry of Justice and the Prosecutor General over reforms of the Prosecutor General’s office. In circumstances to which we shall need to refer in more detail Nikolai Kolev became one of Prosecutor General Filchev’s main and implacable opponents, disclosing and threatening to disclose examples of his illegal activities. On 18 December 2002, the Supreme Judicial Council urged Mr Filchev to resign. On 30 December 2002 Nikolai Kolev was gunned down in front of his home in central Sofia. The circumstances were such that Mr Filchev was publicly accused of being implicated in the killing. The scandalous state of the office of prosecutor in Bulgaria was the subject of critical comment by the United States Ambassador on 10 December 2004. The National Union of Bulgarian Prosecutors issued a statement demanding Mr Filchev’s immediate resignation. The German and Dutch ambassadors and the European Affairs Minister joined the criticism of Prosecutor General Filchev. The EU Affairs Minister described Bulgaria as suffering from “a non-functioning judiciary” and was not fit for EU membership. Amid continuing criticism of the politicisation of the Prosecutor’s office Mr Filchev resigned in February 2006. Mr Filchev was appointed Bulgarian ambassador to Kazakhstan. In June 2006 he refused to attend the Sofia Military Court to answer questions concerning the discovery of intelligence devices in his flat. In June 2008 Mr Filchev was, at his own request, relieved of his post as ambassador. He returned to Bulgaria where he continued to comment publicly upon events during his term as Chief Prosecutor including the prosecution of the respondent and her co-accused.
Habeas Corpus application Divisional Court9 October 2009
- The first request for extradition was made on 16 July 2001 under the hand of the Ministry of Justice in the Republic of Bulgaria. The request was made by the Public Prosecutor General of the Republic of Bulgaria, Nicholai Filchev to the then Home Secretary Mr David Blunkett. A warrant for the respondent’s arrest was issued on 13 November 2001 in Bow Street Magistrates Court. The respondent had fled Bulgaria on 17 August 2000 claiming that threats had been made to her life by Prosecutor General Filchev. She claimed asylum in the United Kingdom in October 2003 but the claim remained undetermined, presumably because Bulgaria joined the European Union. The respondent was arrested pursuant to the warrant on 21 November 2007. Following her arrest an application for a writ of habeas corpus was issued and the matter was considered by the Divisional Court (Scott Baker LJ and Cranston J) on 9 October 2009. Judgment was handed down on 4 November 2009. The court was provided with two detailed witness statements, one from the respondent and the other from Victor Banev, an advocate in private practice in Sofia, who was acting for one of the respondent’s co-accused in the trial which had commenced in the respondent’s absence. In her witness statement the respondent claimed that in March 1999 she had witnessed threats made personally by Mr Filchev to two prosecutor colleagues, Nikolai Kolev and a Mr Jambov. She claimed that Mr Filchev threatened to kill them if they did not close investigation files into two cases, one involving a substantial sum of money transferred to a foreign bank and another into missing weapons. The respondent claimed that she was told by Mr Filchev that if she disclosed anything of what she had witnessed she would regret it for the rest of her life. Believing that she was in league with Prosecutors Kolev and Jambov to damage him, Mr Filchev continued to threaten her until, in the autumn of 1999, she resigned. She claims that she was the victim of anonymous calls. When she reported the continued harassment to the police Mr Filchev intervened personally and threatened her with a pistol. The following day she says that she was visited at home by two men in civilian clothes and subjected to a beating which caused her rib injuries and damage to her liver and a kidney. She was threatened that she should say nothing against Mr Filchev.
- The respondent says that in early 2000 Nadejda Georgieva invited the respondent to her flat. According to the respondent Ms Georgieva confided that the respondent was in danger. Ms Georgieva was in possession of high quality audio surveillance equipment. She played tapes of conversations with Mr Filchev which she claimed secretly to have recorded as her “insurance policy” against Mr Filchev. The respondent believes that Prosecutors Kolev and Jambov were provided with the tapes. At a press conference in February 2000 Prosecutors Kolev and Jambov revealed the state of their investigations into Mr Filchev’s illegal activities and abuse of power. The murder of Ms Georgieva took place at the end of February 2000. In early March the respondent says that she went voluntarily to the police to inform them of what she knew about the incriminating evidence which had been in the victim’s possession. She was shown photographs of the scene. She claims that as soon as she mentioned the possible involvement of Mr Filchev she was interrogated, fingerprinted and hair and saliva samples were taken. She was told that the purpose was to eliminate her from enquiries. She was asked to take a lie detector test and did so. To her surprise the test was attended by a panel of 11 or 12 people. She was subjected to harsh lighting conditions and she was repeatedly asked whether she knew how Ms Georgieva had been killed. It was, she says, a trick question because she had been informed by the investigators of the nature of Ms Georgieva’s injuries and had been shown photographs of the scene. She claims that a chair was thrown at her by Investigator Oleg Ianchev. She was insulted and threatened. A stool was swung against her knee. She was told that they were on the sixth floor of the building, implying that she might be thrown out. At midnight Prosecutor General Filchev appeared. He and the respondent were alone when he took out his pistol and placed it on the table between them. The respondent pleaded to be forgiven, promising that she would never reveal anything about Filchev again. So frightened was she that she wet herself. To her surprise, however, she was released.
- In March 2000 Kolev and Jambov gave another press conference. In April 2000 Mr Kolev wrote to the Senate and the Constitutional court making allegations about Prosecutor General Filchev. At a further press conference Jambov called for Mr Filchev’s resignation. The following day Mr Jambov was found dead in his office in a security building, shot through the head and heart. In May 2000 the respondent and her husband spent a two week holiday in the United Kingdom. They left Bulgaria openly with the relevant visas. In August, after they had returned, she had a mysterious phone call from Mr Filchev and, following advice from her lawyer, she left Bulgaria for the United Kingdom on 17 August 2000. At that stage the respondent says that she was not concerned about the risk of any proceedings but for her physical safety. She received further threats from Mr Filchev via her mobile phone in October 2000. Her husband was arrested in Slovakia in 2001.
- The respondent claimed that she believed she continued to be in great personal danger since she was the only person who could speak of the incriminating conversation between Filchev, Kolev and Jambov in 1999.
- Victor Banev provided to the Divisional Court details of the desultory progress of the trial in Sofia. He says that nobody in the trial, either the lawyers representing the defendants, the court prosecutor or the judge knew anything about the extradition request. On 28 January 2008 the trial was suddenly suspended when it became known that an arrest warrant had been executed in London. The information was provided to the court by the Public Defence Lawyer, Mr Tankov, who had been appointed to represent the respondent in her absence. It became clear that Prosecutor General Filchev had acted alone in pursuing the extradition request without the knowledge of the court. The proceedings in Bulgaria cannot continue while the respondent’s location is known.
- Pending the application for habeas corpus in the Divisional Court, a request was made by the United Kingdom for information from the Sofia City Court which replied on 7 October 2009. The Sofia Court assured the Minister for Justice in the Republic of Bulgaria as follows (with allowances for translation):
“The court found that all guarantees for fair proceedings are available according to the requirements of the Bulgarian Procedure Law and the related conventions of the Council of Europe and European Union’s directives. All the defendants have their own defenders were great professional skills in this scope and a long experience as well. At the request of the defence a lot of experts and witnesses were personally interrogated by the court until this moment. When the defendant Atanasova-Kalaidzhieva appears personally and is being heard by the Bulgarian Court, the same will have all procedure guarantees stipulated in the Bulgarian Criminal Procedure Code, namely: she will have access to the entire case, she will have the possibility to give personal explanations, to require witness’s interrogation, to present other evidence, she will have the right to be represented and defended by the [lawyer] chosen by her and in such a case the court will have to remove the lawyer appointed officially. The defendant will have the right to appeal all indictments of the court including the enacted sentence … the solicitor Victor Banev mentioned in the letter is the defender of the defendant Plamen Dimitro Kalaydjiev – the defendant Dimitrinka Atanasova-Kalaidzhieva’s husband and what was said by him, and namely that the case could only continue after giving the defendant, completely corresponds to the recent situation. According to the mentioned above we kindly ask you to confirm the request of the Republic of Bulgaria …”
- Mr Watson, who represented the respondent in her application for habeas corpus, listed for the Court from the evidence of Mr Banev a number of features of the prosecution which gave rise to serious concern. Some of the more significant were: The investigation file was marked “top secret” and was being closely observed by Prosecutor General Filchev himself. There was no legitimate reason for making the investigation file restricted. Its effect was to prevent access by defence lawyers who could not follow the investigation and could not be present at the interviews of witnesses as normally they would. The defence continued to have difficulty in obtaining official information about the case. There were serious irregularities in the original investigation. The original investigator was removed by the Prosecutor General because, he said publicly, he was not working hard enough. When the respondent’s husband was returned to Bulgaria from Slovakia he was not taken as he should have been to the National Investigation office but to the Transport Police Detention Centre, a place for detention and interrogation under the personal supervision of Prosecutor General Filchev. He remained in custody for a period of 18 months but was interviewed on only 2 occasions. Many of the witnesses interviewed were employees of the prosecutor’s department. Several witnesses refused to attend to give evidence. In June 2006, when the first trial was nearing its conclusion, the judge recused himself with the result that the trial had to start again. The belief held among the defence advocates was that a point in the trial had been reached when the judge had either to make a decision unfavourable to the prosecution or recuse himself. The replacement trial judge commented that the investigation had been “illegal and unprofessional”. The only meaningful change to take place, however, was the declassification of the “top secret” file of evidence which did not undo or correct the irregularities in the original investigation. The evidence comprised merely expressions of belief as to the inter-relationship between the victim of the murder and the accused. No attempt was made to interview or investigate Mr Filchev. In particular there has been no examination of the issue whether the deaths of Mr Kolev and Ms Georgieva are linked. There was evidence that Ms Georgieva had acted as a go-between in criminal activity involving fraud on a major financial institution in Bulgaria in respect of which she may have been acting on the instructions of a man called Christian Mastiv. Mr Mastiv was murdered three weeks after Ms Georgieva’s death.
- The Republic of Bulgaria made no reply to the evidence submitted to the Divisional Court on the respondent’s behalf. Mr Hardy QC, who appeared for the Government of Bulgaria to resist the application for habeas corpus, submitted that there was no need to respond. Bulgaria had become a member of the European Union and was therefore a party to the European Framework Decision of 13 June 2002. The Court should, Mr Hardy, submitted, accept that the respondent would receive a fair trial in Bulgaria.
- In giving the judgment of the Court, Scott Baker LJ said at paragraph 29:
“The problem in the present case is that the evidence of the applicant and Banev is unanswered and, if true, raises some very disturbing concerns. Mr Hardy points out that the concept of bad faith has disappeared entirely from the 2003 Act, although some matters that might have been relevant to the question of bad faith might fall to be considered under abuse of process. The thrust of his argument is that Bulgaria is now a member of the European Community and we can rely on the Bulgarians conducting a fair criminal trial process. Events have moved on since the days when Filchev was general prosecutor. It is accepted by both sides that issues under Articles 2 and 3 of the European Convention on Human Rights are not relevant on the present application and would in any event fall for consideration before the applicant’s removal.”