Atanasova v HMP Holloway & Anor [2009] EWHC 2740 (Admin)

[2009] EWHC 2740 (Admin)Case No C0/9998/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/11/2009
Before
LORD JUSTICE SCOTT BAKERMR JUSTICE CRANSTON
Between
DIMITRINKA ATANASOVAApplicantTHE GOVERNOR OF HMP HOLLOWAYRespondentsTHE GOVERNMENT OF BULGARIARespondent
Ben Watson (instructed by Hallinan, Blackburn, Gittings & Nott) for ApplicantJohn Hardy QC (Instructed by the Court Prosecution Service) for 2 nd RespondentHearing Hearing date: 9 October 2009
Judgment
[1]The applicant challenges the decision of District Judge Purdy sitting in the City of Westminster Magistrates’ Court on 19 May 2008 committing her to await the decision of the Secretary of State for the Home Department following a request by the Government of the Republic of Bulgaria received in the United Kingdom as long ago as 2001, and a warrant for her arrest issued on 13 November 2001 in the Bow Street Magistrates’ Court in relation to three offences namely murder, manslaughter and theft.[2]The application before the court is for habeas corpus. The request for extradition pre-dates the Extradition Act 2003 and the case is therefore governed by the Extradition Act 1989.[3]The case has features that are both strange and unusual, not least that the applicant is the former private secretary to the Bulgarian General Prosecutor, a man called Filchev, whose activities in a number of respects have led, in various circles, to allegations of serious misconduct.[4]The applicant is accused, with others, of murdering another legal assistant of Filchev, Ms Georgieva. The death of Ms Georgieva occurred late in February 2000. The extradition request is dated 16 July 2001. The applicant fled Bulgaria on 17 August 2000 because, she says, of threats to her life by Filchev. She claimed asylum here in October 2003 but that claim remains undetermined. She was arrested pursuant to the warrant on 21 November 2007.[5]Section 11(3) of the Extradition Act 1989 provides:
“Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant’s discharge if it appears to the court in relation to the offence, or each of the offences, in respect of which the applicant’s return is sought, that:……… (b) by reason of the passage of time since he is alleged to have committed it or to have become lawfully at large, as the case may be; or (c) because the accusation against him is not made in good faith in the interests of justice, it would, having regard to all the circumstances, be unjust or oppressive to return him.” (b) by reason of the passage of time since he is alleged to have committed it or to have become lawfully at large, as the case may be; or (c) because the accusation against him is not made in good faith in the interests of justice, it would, having regard to all the circumstances, be unjust or oppressive to return him.” it would, having regard to all the circumstances, be unjust or oppressive to return him.”
[6]The applicant’s case is based on(i) bad faith and(ii) the passage of time, the main focus of the argument being on bad faith. If either ground is made out on the balance of probabilities the applicant must be discharged.[7]The applicant’s case is supported by two lengthy witness statements, one by the applicant running to 172 paragraphs, the other by Victor Banev, an advocate in private practice in Sofia, Bulgaria, who acts in Bulgaria for one of the applicant’s co-accused, namely her former husband Plamen Kalaydzhiev. The Bulgarian Government has not sought to file any evidence in reply to these statements. Parts of the applicant’s statement have been redacted but Mr Watson, who has appeared for her, has not sought to rely on those parts and it has, in the circumstances, been unnecessary for the court to consider whether it would be appropriate to look at them.[8]In very brief summary what the applicant says is as follows. Under the Bulgarian constitution, Filchev, as the former General Prosecutor, was the most powerful man in the country, and immune from prosecution. She claims he is corrupt and dangerous and that he is presently being investigated at the highest levels. Further, he knows she could give damning evidence against him. For this reason he has terrorised her and if he ever finds out where she is she is sure he will see that she is murdered.[9]Filchev took over as General Prosecutor of Bulgaria in February 1999 and, having worked for his predecessor, the applicant then took over as his private secretary. She describes him as intimidating and forceful and says that he interfered with secret files, destroyed evidence from them and activated bugging devices in prosecutors’ offices. He had close links with the mafia whose senior members used to visit him.[10]The applicant tried to distance herself from Filchev and moved to be in charge of administration to get away from him but he still treated her as his private secretary. In March 1999 there was an incident involving two prosecutors Kolev and Jambov, whom Filchev threatened to kill if they did not close files on cases that involved the transfer of a lot of money to a foreign bank and an investigation into missing weapons. They were threatened with death and the applicant, who had witnessed his threats, was threatened that if she disclosed anything of what she had seen or heard she would be sorry for the rest of her life. Later, he wanted to know what she had said to the two prosecutors and threatened her with a hand grenade. Although she promised she had told them nothing he persistently threatened her thereafter over a period of months. She resigned her post in the autumn of 1999. After her resignation she received an approach from a third party suggesting her life would be a nightmare if she did not work again for Filchev. This was followed by aggressive calls from Filchev himself and then anonymous calls and other forms of harassment. When she reported the harassment to the police Filchev intervened and threatened her with a pistol. The following day she was visited at home by two men in civilian clothes, beaten up and told not to say anything against Filchev. As a result of this the applicant suffered four broken ribs, liver and kidney damage and other injuries.[11]In early 2000, a lawyer Nadejda Georgieva, whom the applicant had got to know when she worked for Filchev, invited the applicant to her flat. She told the applicant she was in danger and showed her some hi-tech bugging equipment. Then she played tapes of conversations with Filchev which she had secretly recorded saying they were her insurance policy as she feared Filchev was blackmailing her. The applicant says Gerogieva later told her she had told Filchev about playing the tapes. She believes that the two prosecutors asked for the tapes and were given them.[12]The two prosecutors continued to investigate Filchev. At a press conference in February 2000, at which some international media were present, they produced evidence about his illegal activities and abuse of power.[13]At the end of February 2000 Georgieva was murdered in her flat. In early March 2000 the applicant went voluntarily to the police to tell them what she knew of Georgieva. She says that as soon as she mentioned Filchev the police officers attitude to her changed. She described what happened thus:
“I was taken to a room and shown many photographs of Nadejda which had been taken after her murder……I was then interrogated about my knowledge of Nadejda and my whereabouts on the night of her murder. I was fingerprinted and had hair and saliva samples taken. At the time I was told it was to eliminate me from their inquiries. I was asked to take a lie detector test, which I agreed to because I thought it would prove what I was saying about Filchev. However, it was horrendous. I was made to sit opposite a panel of about 10 or 11 people with a lamp shining in my face. They terrorised me. If they did not like the answers I gave, they kept repeating the question over and over again. They would not accept what I was saying. This went on for a long time, all the time with this bright light shining in my face. In particular, they kept asking me whether I knew how Nadejda had been killed and demanding that I answer “yes” or “no”
. This was a trick question because I had just been told and shown how Nadejda had been killed and each time I tried to explain this they became more aggressive towards me. At one point Mr Oleg Ianchev, the investigator in charge, threw a chair at me and I screamed. I started to feel very bad, very sick. They insulted me and threatened me. I was made to sit there for hours. They would not let me go to the toilet and said I could “piss on the chair”. It was very painful for me because I suffer from kidney problems. They said such unpleasant things to me, telling me if I wanted to go I could jump out of the window. We were on the sixth floor of the building. As well as being verbally abusive to me, they also physically abused me; Mr Oleg took a stool that was in the room and smashed it against my knee. He was shouting at me angrily, spitting all over me as he shouted. When I answered one of their questions, they twisted my words and threatened me and insinuated I that was responsible for the murder of Nadejda. I begged them for water but they gave me nothing during the whole time I was held there. My lips and mouth were so dry. At about midnight Filchev appeared at the door of the room I was being held in. I was so scared when I saw him, I had a panic attack. It was the end of me mentally. Filchev asked the guard in the room not to let anyone else come in. Filchev took out his pistol and placed it on the desk on the room. He played with it on the table. He asked if I realised who I was dealing with, why I did not understand and said that I needed to be taught a lesson. He shouted that I was nobody and nobody would take my words against his. I was so frightened; I was crying and pleading with him to forgive me, promising I would never say anything about him again. Filchev held his gun against my forehead; I felt the cold metal on my skin. I was terrified and I wet myself. Filchev threatened that I was, “on the way to being at the end of a bullet and that no one would know where I was”. He said there would be no record of his visit to the police station. He wanted to know whom I had spoken to about him. I said I had told nobody, I begged him for mercy. He told me this was my last chance and that if I put a foot wrong again I would be “out of the game”. I was so frightened, I was sobbing. He left the room, smiling. He seemed to enjoy terrorising me. I am sure I was only released because I became so weak and my stomach ulcer started to cause me such pain. I remember I was told I could either walk through the door or jump out of the window. I was exhausted and terrified.”[14]After release from the police station the applicant tried to keep invisible from Filchev and keep a low profile. In March 2000 Kolev and Jambov gave another press conference. In April 2000 Kolev wrote to the Senate about Filchev and both Kolev and Jambov wrote to the Constitutional Court. This was followed by another press conference about Filchev’s wrongdoings. Jambov called for his resignation. The following day Jambov was found dead in his office in a top security building with a bullet through his head and another through his heart. At first it was said to be murder, but a week later this was changed to suicide. It was claimed by prosecutors working with Kolev that Filchev had pressured the chief investigator to change the cause of death from murder to suicide.[15]In May 2000 the applicant and her husband spent a two week holiday in the United Kingdom. They left Bulgaria openly with the relevant visas and on their own passports. After their return her harassment continued as before. In August 2000 she received what she describes as a very sinister phone call from Filchev. She says she left Bulgaria by plane on 17 August 2000 following advice from her lawyer that she would be putting her life in serious danger if she remained. She came to this country with leave to enter for a limited period and was advised by her lawyer to claim asylum on arrival. She says she left Bulgaria because she was scared of Filchev and not because she thought trial proceedings would be brought against her. She said she felt unable to take her lawyer’s advice and claim asylum on arrival in May 2000 and indeed did not do so until over three years later in October 2003.[16]In October 2000 Filchev, having discovered the applicant’s mobile phone number, terrified her on the telephone. In 2001 the applicant’s husband was arrested in Slovakia, told that Interpol were searching for him and eventually deported to Bulgaria. It was after this, in the summer of 2001, that the applicant found out from her lawyers that Filchev was accusing her and her husband of murdering Georgieva and that they were both wanted for questioning.[17]Filchev continued to phone the applicant’s sporadically through 2001 and 2002 with comments such as: “the grave next to your father’s is yours”.[18]On 28 December 2002 Kolev was shot dead outside the Constitutional Court. The applicant says the investigation was brief and no one has been convicted of his murder. In January 2002 Tankov was appointed to represent the applicant as a public defender. In the spring of 2003 she was told by her lawyers that they had received an arrest summons for her and that she was wanted for questioning about Georgieva’s murder. She says she has never officially been charged with her death, notwithstanding the extradition request. She claims she is still in grave danger from Filchev pointing out that she is now the only living person who can speak of the conversation he had in his room in 1999 with Kolev and Jambov. She claims that since 2003 her harassment has continued.[19]In October 2005 the lawyer who was then acting for her in Bulgaria died in unnatural circumstances in his office. She says his body was cremated within two hours of his death.[20]The above is a brief description of some of the matters described by the applicant in her very detailed statement. It obviously raises, as does the whole of her statement, a number of questions and possible inconsistencies. However, the requesting authority has lodged no evidence in response. Mr Hardy, on their behalf, submits it is unnecessary for them to do so. His position is the same with regard to the evidence of Victor Banev to which we now turn. He, as we have said, acts for Plamen Kalaydzhiev, the applicant’s former husband.[21]A key point of Banev’s evidence is that it now appears that a request was made in 2001 by Filchev for the applicant’s extradition to be tried for the murder of Ms Georgieva but that nobody in the trial proceedings (neither the judge nor the prosecutor nor the defence) knew anything about this extradition request. The case had continued in Bulgaria on the basis that the applicant’s location was unknown. Banev describes what happened in these terms:
“On 28 January 2008, the case was suddenly suspended. It was suspended because it became known that (the applicant) had been arrested under an arrest warrant in London. The events in court on this date were tumultuous. It was the defence who notified the court that (the applicant) had been arrested in the UK. (The applicant) has been represented throughout by a public defence lawyer, Mr Tankov. This has been on the basis that her whereabouts were unknown to the prosecution. Mr Tankov informed the court of her arrest under the extradition request. It was clear that although this extradition request was made in 2001 the prosecution had absolutely no idea about it, let alone that (the applicant) had been arrested. The judge was furious and demanded an explanation from the prosecution. None was given. It appears that the extradition request was submitted by Filchev acting alone and not proceeded with through the ordinary official channels. As a matter of Bulgarian law, the proceedings cannot now continue because (the applicant’s) location is now known. As such, the case cannot proceed in her absence until a decision is taken in London with regard to the extradition proceedings. Therefore the case in Bulgaria has now been adjourned.”
[22]Mr Hardy invites the court to scrutinise carefully the paperwork emanating from Bulgaria submitting that whatever misdeeds Filchev was or was not up to he got the paperwork in order and that the request for extradition has been processed through the appropriate foreign affairs channels. The documents, he submits, show that Filchev cannot have submitted the request on his own. We can see the force of this submission. Although the request was made by Filchev it was signed and sealed on behalf of the Ministry of Justice by Simeonov and enclosed the seven documents referred to within it, including the “ruling for bringing to justice” signed by Nikolov, the investigator at the Specialised Investigator’s Service in Sofia.[23]Mr Watson, for the appellant, drew attention to no less than 23 features arising from Banev’s evidence that he submitted collectively if not individually, raised serious question marks about the background to this extradition request. They are in summary as follows:(i) That the case had been marked “top secret” and was being closely observed by Filchev. These were irregular features in Bulgarian criminal proceedings.(ii) The defence had difficulty in obtaining official information about the case and were denied access to relevant documents.(iii) There were serious irregularities in the original investigation.(iv) When interviewed in March 2000 the applicant was subjected to an unlawful lie detector test.(v) The chief prosecutor’s office claimed that the original investigator had not worked hard enough and he was replaced. The inference is that this was at the instigation of Filchev.(vi) In January 2002, when the applicant’s husband was returned to Bulgaria he was taken to Filchev’s favoured place for detention and interrogation, the Transport Police Detention Centre, whereas he should have been taken to the National Investigation Office.(vii) There was no basis for the ongoing classification of the case as “top secret”.(viii) Unlawful refusal to give access to the court file meant that no effective application for bail could be made and any application was therefore bound to fail.(ix) Although in custody for 18 months the applicant’s husband was only interviewed on two occasions which was most unusual in Bulgarian criminal procedure.(x) Defence counsel was unlawfully refused access to witnesses when they were being questioned during the investigation stage.(xi) There were numerous violations of procedural law which was of particular relevance as many of the witnesses were employees of the prosecution department.(xii) There has been ongoing bugging of defence counsel’s phone.(xiii) The real target of the allegations, Kolev, was murdered.(xiv) Numerous witnesses refused to attend.(xv) As the case appeared to be nearing its conclusion in June 2006 the judge recused himself with the result that the whole proceedings had to start again. It is said that he did so because the point was about to be reached where he was required to make a decision, and he did not want to be in that position. (xvi) When a new judge took over she found the prosecution’s investigation had been “illegal and unprofessional” and that there had been numerous serious unlawful acts during the investigation stage. She refused to hear the case until they were addressed. (xvii) The prosecution’s response to the new judge was limited and superficial. They declassified the “top secret” status of the proceedings but did not tackle the underlying deficiencies in the earlier process, which it is said they would have done had they been acting in good faith. (xviii) The request for extradition was made without the knowledge of either side. It was alleged that Banev would say (although I do not think there was any evidence of this) that Simeonov, the minister who ostensibly signed the certificate on 16 July 2001, was sacked a week before. (xix) The extradition request included an allegation of theft which had never been alleged in the original proceedings. (xx) There was much indirect evidence before the court about the interrelationship between the victim and the accused but no direct evidence. There was, however, evidence against Filchev. (xxi) The nature of the murder was hardly consistent with it having been committed by a legal secretary. (xxii) There was a great deal of evidence that the victim was a “middle man” in deals involving fraud on a major financial company and that she was acting on the instructions of Christian Mastiv. This deal caused great damage to the interests of various powerful and well connected people. (xxiii) Mastiv was murdered three weeks after Georgieva.[24]Mr Hardy’s response to Mr Watson’s 23 points is that the court is largely being invited to find serious breaches of procedure by the Bulgarian court, which is not an issue for the United Kingdom court on an extradition request. He says that in some instances the court is being asked to make findings of fact and that, for example, witnesses in all jurisdictions are often reluctant to come forward in criminal trials. Some of the points are what he describes as “good defence points” in criminal proceedings. As the file has now been declassified as top secret that point has, to that extent, been remedied. In short, the main thrust of his argument, and we can see the force of this, is that the trial process is a matter for the Bulgarians. The point must also be emphasised that although the whole of the applicant’s and Banev’s evidence remains unanswered it is to a considerable extent assertion unsupported by hard evidence.[25]The critical point it seems to us is what light the evidence throws on the good faith issue. In the absence of any evidence to refute the evidence of the applicant and Banev Mr Hardy’s position is this. He accepts for the purposes of argument that the applicant worked for a person who behaved inappropriately. But, he submits, Bulgaria is now a member of the European Union and a party to the European Framework Decision of 13 June 2002 and the mechanism of the European arrest warrant is based on a high level of confidence between member states (see recital 10 to the Framework Decision). It seems to us that Mr Hardy’s argument comes very close to submitting that the court should treat the present application for extradition as a European Arrest Warrant case to which the Extradition Act 2003 applies. The reality is that this case predates the European Arrest Warrant legislation and the court has to consider the issue of bad faith; it is no answer that in 2009 we can proceed on basis that the high level of confidence between Great Britain and Bulgaria has overtaken any concerns the court may have about the circumstances in which the warrant was issued. It is not enough that the court can proceed on the basis that the applicant will have a fair trial in Bulgaria.[26]Mr Watson relies on the statement of principle of the test of good faith in the interests of justice made by Woolf L.J in Re Osman [1992] Crim LR 741. We were supplied with a full transcript of the judgment. He said this at p.9:
“…..in my judgment the term “good faith” has to be given a reasonably generous interpretation so that if the proceedings were brought for a collateral purpose, or with an improper motive and not for the purpose of achieving the proper administration of justice, they would not be regarded as complying with the statutory requirement. Likewise the accusations would not be made in good faith and in the interests of justice if the prosecution deliberately manipulates or misuses the process of the court to deprive the defendant of a protection to which he is entitled by law.”
[27]That ‘accusation’ in s11(3) is not confined to the actual request for extradition is apparent from the decision of the Divisional court R (Saifi) v Governor of Brixton Prison and Another [2001] 1WLR 34. Rose LJ, giving the judgment of the court said at 1157D:
“Accusation is broad enough to encompass the accusation of a witness or witnesses and the offence charged in consequence. By making a request for extradition, reliance is placed upon the evidence of any witness and the offence disclosed thereby. The protection afforded by the subsection would be rendered “sterile”, as Mr Nicholls submitted, if the issue of bad faith could be divorced from the underlying facts supporting the request.”
The claim in habeas corpus in that case succeeded notwithstanding counsel’s argument that there had been a change of government both in India and in the state to which extradition was sought.[28]In Sutej v The Governor of HMP Holloway and Another [2003] EWHC 1940 (Admin) Maurice Kay LJ, giving the judgment of the court said at para 63:
“Thus, although this is a European Convention case and it was unnecessary for the district judge to consider the sufficiency of the evidence, the issues raised under section 11(3)(c) do require this court to consider “the underlying facts”.”
He went on at para 64:
“As there is no suggestion that any organ of the Swiss state or its prosecuting authorities or the examining magistrate have acted in bad faith, the central issue in the present case is whether the accusations made against the applicant by Mr Rafael and Ms Brink are made in good faith in the interests of justice. The burden is upon the applicant to establish on a balance of probabilities, that they are so made.”
He then said at the end of the judgment at para 74:
“It is incumbent on this court to apply the “good faith in the interest of justice” test to the material which is now before it……..Whilst the good faith of the Swiss authority is not in doubt, that of the principal witness is improbable. In these circumstances, although the applicant would undoubtedly be treated justly by the Swiss courts we conclude that it would be oppressive to return her on the Brink charges. She must therefore be discharged in relation to them. That is a decision which we do not take lightly. It is based on the unusual facts and history of this case. We do not intend or anticipate that it will provide any comfort to future applicants.”
[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.[30]Mr Hardy fortifies his argument by reference to use of the present tense in s.11(3) “the application is not made in good faith.” This court, he submits, need have no concerns about the present even if it does about the past. We cannot accept this submission. The accusation remains a continuing accusation. An accusation once made continues to be made until it is either withdrawn or disposed of. Bad faith at any point in the process would taint the allegation and trigger consideration of whether it would be unjust or oppressive in all the circumstances to return the applicant. For example, there might be bad faith in pursuing and extradition request originally made in good faith if facts came to the attention of the requesting state making it clear that the person sought could not be guilty of the offence for which he was being extradited.[31]Mr Hardy’s argument is that even if the request was originally made in bad faith Filchev has no longer any influence and the allegation is now being pursued in good faith. Even if that were correct on the facts, we do not think it would expunge original bad faith. It must not be forgotten that the context is habeas corpus, a prerogative writ which in our law has operated at least from the 17th century as a guarantee of liberty. It is precisely in circumstances where someone has been detained because of an accusation made in bad faith that habeas corpus will act to free that person. Subsequent events might, possibly, be relevant as part of all the circumstances in deciding whether it was unjust or oppressive to return the applicant.[32]The explanatory letter from the Sofia City Court, Criminal Division, of 7 October 2009, simply explains that a hearing has taken place in relation to the accusation against the appellant and her co-defendants, and that it proceeded in her absence until it was stayed in 2007, when it was discovered that she was in this country. The letter explains that a European arrest warrant was to be issued in mid 2008, but that advice had been received from the UK representative in Europol that to issue it would slow down the proceedings in this country. The letter explains the protections available to defendants before the Bulgarian court, and confirms the request that she be extradited. As for the letter from the Director of International Legal Assistance and European Affairs at the Bulgarian Ministry of Justice, he simply declares that it completely supports the request of 16 July 2001. Neither of those letters provides an answer to the matters which have led us to conclude that the original warrant is invested with bad faith.[33]Mr Watson concludes by submitting that this is a 1989 Act case kept alive after 1 January 2004 to be dealt with under the 1989 Act legislation. He argues that the 1989 Act should not be reinterpreted in the light of the 2003 Act. He argues that there were irregularities leading to the inference of bad faith. The evidence of both the applicant and Banev remains unanswered.[34]During argument we questioned why, in the light of the manner in which events had unfolded, the present application was not withdrawn and a fresh application made under Part 1 of the 2003 Act when all the issues could be considered in the light of up to date evidence. That matter was, we understand, considered by the requesting state some time ago but it was apparently advised to pursue defence of the present application.[35]In our view the applicant is entitled to the relief sought in the present proceedings on the basis that the allegation of bad faith and the provisions of s11(3)(c) are made out. We do not, in the circumstances, think it is necessary to go into the issues relating to passage of time which seem to us to an extent to be interlinked with the claim of bad faith.[36]Nothing we have said in this judgment is intended to have any bearing on the decision of any court considering a fresh application for extradition under the 2003 Act.[37]We allow the application and grant habeas corpus.