Nikolov v Regional Prosecutor's Office Pazardjik (Bulgaria)

LORD JUSTICE BEATSON:

1. Mr Josse, we do not need to trouble you. We have concluded that these proceedings should be stayed pending the cases before the District Judge which are due to be heard on the article 3 point in the middle of February 2016. We therefore do not have to rule on the request for an adjournment to provide evidence. As Mr Josse said, the evidence that he was seeking to adduce will either be provided in those proceedings, or the appellant will have an opportunity to adduce it.

2. Staying the proceedings will also enable the requesting state to consider whether the documentation before this court is adequate. First, in relation to the translations, it appears that we only have part of the assurance translated. It may be that it is only the covering letter that is not translated. But we do not have a document with an indication as to who, within the Ministry of Justice, has given the document or what the position is. Secondly, the requesting state might like to consider the capacity of the Ministry to bind the Prison Service. The answer may not be the same as the position in, for example, the case of Romania, with a different constitution. It is for the requesting state to consider whether it needs to put more material before this court on that.

3. I emphasise that the stay will, as my Lord said during the argument, enable the proper development of the article 3 issues at first instance, with evidence, so that when this case comes before the Divisional Court, the Divisional Court will be fully appraised. There are examples which those practising on both sides of the Extradition Bar know where cases have come to this court in an evidentially incomplete form and the decisions on important points are then of little or no use for the future. An article 3 point about a country, and the adequacy of assurances given by a specific country is a point which is generic and needs to come before this court with the appropriate evidential basis and in a proper form.

4. That is therefore our order. As well as any evidence about the assurance, it will be possible for the material concerning the steps taken by the Bulgarian authorities to be put before the court in a proper form so that the court can approach the assurance in an appropriate way with all that specific material. It was, for example, unfortunate that the September meeting material was not before the court until late in the hearing. We have considered it and, as my Lord has said, it does produce a slight change in the situation. But it does not go to the main point. The main reason for this stay is to enable a proper trial at first instance of this issue. It is not satisfactory for an appeal court to act as a court of first instance with insufficient material before it.

5. We are grateful to both of you for your oral submissions, to Mr Hearn for his written submissions and to Mr Chelliah for his written submissions. ( An application by Mr Josse for a certificate for leading counsel was refused on the basis that it was premature )