Dragnev v Bulgarian Judicial Authority [2025] EWHC 2812 (Admin)

[2025] EWHC 2812 (Admin)Case No AC-2024-LON-003254
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/08/2025
Before
MR JUSTICE MOULD
Between
DRAGNEVApplicantBULGARIAN JUDICIAL AUTHORITYRespondentMR G HEPBURNE SCOTT (instructed by Bark & Co Solicitors) appeared for Applicant for The Respondent did not attend and was not representedJUDGMENTDigital Transcription by Epiq Europe Ltd,Lower Ground, 46 Chancery Lane, London WC2A 1JEWeb: www.epiqglobal.com/en-gb/Email: civil@epiqglobal.co.uk(Official Shorthand Writers to the Court)This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
[1]Ground one of this appeal raises the issue whether the judge was arguably wrong to find to the criminal standard that the appellant deliberately absented himself from his trial for each of the extradition offences for which his return to Bulgaria is sought.[2]In Bertino v Public Prosecutor's Office, Italy [2024] 1 WLR 1483, the Supreme Court held that the phrase "deliberately absented himself from his trial" in section 20 of the Extradition Act 2003 should be understood as being synonymous with the concept in the jurisprudence of the European Court of Human Rights that an accused person had unequivocally waived his right to be present at his trial.[3]At [33] in Bertino, the court said:
"A person may waive the rights guaranteed by article 6 'of his own free will, either expressly or tacitly. However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance.' At para 87 [in Sejdovic v Italy] the [European Court of Human Rights] reiterated that waiver cannot be inferred merely from a defendant's status as a fugitive and repeated the observation in Jones that before concluding that a right to trial in person had been implicitly waived 'it must be shown that he could reasonably have foreseen what the consequences of his conduct would be.'"
[4]The arrest warrant in this case relates to a sentence of imprisonment of a combined length of nine months for two driving offences committed in Bulgaria. The first offence, committed on 25 June 2017, was one of driving with excess alcohol for which the appellant received a sentence of 3 months' imprisonment. The second offence, committed on 27 April 2018, was an offence of driving whilst under the influence of drugs or refusing to provide a specimen, for which the appellant received a sentence of 6 months' imprisonment.[5]Taking the second offence first, the further information provided by the Judicial Authority stated that the appellant was duly notified of his trial and served with the indictment. On 25 June 2018 he filed an application to the court in which he requested a continuance of the court hearing in the case, as he had to appear in a state examination. I take this to be the equivalent of a request for an adjournment of his trial. The appellant left Bulgaria the following day and the district judge found he had done so as a fugitive.[6]In [49] of his judgment, the district judge stated that he was satisfied that the appellant had been duly notified of his trial and served with the indictment:
"He had made an application for the ‘continuance’ (ie delay) of the case as he told the authorities that he had to appear at a state exam and he then chose to leave the country the following day without informing the relevant authorities of any UK address. As mentioned heretofore, in evidence he said that he had come to the UK ‘for a new life hoping it would all be forgotten’ and that he had deliberately tried to avoid the court regarding this conviction."
[7]On the basis of that evidence, it cannot reasonably be argued, in my judgment, that the judge was wrong to find it proven to the criminal standard that the appellant had deliberately absented himself from his trial and that consequently there was no bar to his extradition for that second offence under section 20 of the 2003 Act.[8]Applying the approach of the European court as quoted in [33] in Bertino, it is obvious that the appellant will have foreseen that the consequences of his conduct in leaving Bulgaria the day after his trial was adjourned on the basis of him having to sit an exam, would be that the trial must proceed in his absence. The fact that the district judge misunderstood whether the appellant had a right to request a retrial is immaterial and does not affect that inescapable conclusion on the facts in relation to the second offence.[9]However, as regards the first extradition offence, the position is not so straightforward. In relation to proceedings against the appellant for that offence, the further information is that the appellant was questioned during pre-trial proceedings. He was neither detained nor subject to any restraining measures. He said that he pleaded guilty to the incrimination and expressed regret for what he had done. It is said that he was informed of the sentence passed on him and on 8 January 2018 he personally received and signed a certified copy of the judgment. Then this is stated:
"The appellant was not notified of the trial in the proper manner as he was not found at the address he indicated in the country. The appellant was not subject to any restrictions regarding his movement. As the appellant was convicted in absentia he has the right to request a reopening of the case within six months from the date on which he found out that the sentence came into force. When the appellant was summonsed on 30 June 2017 as a defendant in the case, he was explicitly informed of his obligation not to change his place of residence and to appear when summoned and in the case of non-fulfilment of these obligations, a restraining measure will be taken against him. The appellant personally signed that."
[10]At [48] of his judgment, the district judge was satisfied that the appellant had pleaded guilty to the offence and was appropriately informed of the sentence imposed. He was not notified of the trial date because he was not found at the residential address that he had earlier provided to the Bulgarian authorities. However, the further information confirmed that he had a right to a reopening of the case and on that basis he found that the appellant had deliberately absented himself from his trial.[11]In Bertino at [58], the Supreme Court referred to the case of Sejdovic at [99] and to the examples there given:
"The court recognised the possibility that the facts might provide an unequivocal indication that the accused is aware of the existence of the criminal proceedings against him and of the nature and the cause of the accusation and does not intend to take part in the trial or wishes to escape prosecution. Examples given were where the accused states publicly or in writing an intention not to respond to summonses of which he has become aware; or succeeds in evading an attempted arrest; or when materials are brought to the attention of the authorities which unequivocally show that he is aware of the proceedings pending against him and of the charges he faces. This points towards circumstances which demonstrate that when accused persons put themselves beyond the jurisdiction of the prosecuting and judicial authorities in a knowing and intelligent way with the result that for practical purposes a trial with them present would not be possible, they may be taken to appreciate that a trial in absence is the only option. But such considerations do not arise in this appeal …"
[12]In my view, it is reasonably arguable that the position in the present case does not establish to the criminal standard that at the time of his pending trial for his first offence, the appellant's actions amounted to an unequivocal waiver of his right to be present at his trial. He was not under any restraint. Although the further information states that the appellant was informed of his obligation not to change his place of residence, it is not said that he was informed that if he did so his trial might proceed in his absence. At the time, he was not subject to any restrictions on his movement.[13]I take account of the fact that during pre-trial proceedings he had pleaded guilty to the offence and that it is said that, having been convicted and sentenced, he received and signed a certificate to that effect.[14]The respondent has conceded that the judge was wrong to find that the appellant had a right to reopen the case against him.[15]In the light of that information, when considered against the guidance given by the Supreme Court in Bertino, I consider that there is a reasonable argument to be made that the appellant did not deliberately absent himself from his trial for the first offence.[16]I turn then to ground two which seeks to challenge the judge's decision that it would not be disproportionate to the appellant's rights protected under Article 8 of the European Convention on Human Rights for him to be extradited for the two offences for which his extradition is sought.[17]The judge's reasoning on that issue and the justification for his conclusions, are set out in detail in [64] of his judgment. Insofar as the conclusions which are set out in that paragraph relate to the balance to be drawn between extradition for two offences of driving with an overall sentence of nine months' imprisonment to serve and the impact of extradition on the appellant's private life, I can see no arguable basis for contending that the judge's conclusion was wrong.[18]However, given my decision to give permission in part on ground one, that raises the possibility that at the substantive appeal the appellant may be discharged under section 20 of the 2003 Act in relation to offence one. In consequence, the Article 8 balance may need to be reconsidered on the basis of him being liable to be removed to Bulgaria for a single offence of driving under the influence of drugs and/or failing to provide a specimen, with a remaining sentence of six months rather than nine months to serve following his return to Bulgaria.[19]In my judgment, it is appropriate for me to give permission for the appeal to proceed on ground two on the limited basis that, in that scenario, the proper course would be for this court to reconsider the Article 8 balance on the basis of the partial discharge of the appellant in relation to the first offence for which his extradition is sought.[20]I shall grant permission to appeal on ground one, limited to the question whether the appellant deliberately absented himself from his trial in relation to offence one. In the event that ground one succeeds and the appellant is discharged on offence one, there is permission to appeal on ground two to enable the Article 8 balance to be reconsidered by the judge hearing the appeal in consequence of that discharge. Otherwise, permission to appeal is refused.[21]I have also before me an application to admit fresh evidence in the form of a witness statement from the appellant and a witness statement from Ms Lisa Chinodya, the appellant's being dated 23 May 2025 and Ms Chinodya's, 27 May 2025. Having considered the contents of those witness statements, I am quite satisfied that I should refuse their admission, applying the principles in the case of Szombathely City Court & Ors v Fenyvesi & Anor [2009] EWHC 231 (Admin). In my judgment, they add nothing of substance to the factors relied upon by the appellant in support of his discharge under section 21 and Article 8 at the hearing before the district judge; and it cannot arguably be said that if that evidence were admitted, it would lead to a different conclusion to that drawn by the judge in relation to those matters.[22]Permission to appeal is granted on the limited basis which I have set out in this ruling. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: civil@epiqglobal.co.uk