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Lalegislazionepenale ISSN:2421-552X1 15.1.2018

Brexit and the Future of European Criminal Law: The consequences of Brexit for Bulgarian Criminal Law

by Aneta Petrova

I. Introduction This chapter reflects a special mix of two perspectives, political and practical,

offering a detailed examination of political challenges and opportunities faced by national authorities. Providing readers with necessary background information, we will offer suggestions that effectively outline the debate on EU criminal law and policy and clarify what is at stake, both from a political as well as from a practical perspective.

Analysing the cross-reference mix of law and politics at the European level, we highlight the questions about the relationship between two countries which are not members of the Schengen area for different reasons. The UK relationship with Police and Criminal Justice measures in the EU is ambivalent. We are talking about opt-out and in-out.1 These two procedures are defined by doctrine under the name of' “Variable geometry”.2

One example is the Commission Decision dated 1 December 2014 on the notification by the United Kingdom of Great Britain and Northern Ireland.3 UK has opted in to the directive on the right to access to a lawyer in criminal proceedings (2013).4 Baroness Ludford has pointed out, “I am sorry the UK has not opted into the directive on the right to a lawyer, because I think we have the gold standard on that in the EU and it is a pity that we do not show leadership on that particular measure.”5 Being critical, John Spencer has noted that ”[t]here is much in the current laws and practices of the UK that the US is entitled to be proud of, and in respect of which it is in a position to give a lead to the rest of the EU – and in particular, to those Member States in which these things are at present less well done.”6

The second example, as we noted, are the Schengen Agreements.7 While the UK is not a signatory to the Schengen Agreements because of the importance given to the maintainance of national borders, Bulgaria has not met all the requirements to join

1 See some of the opt-out examples are provided by André Klip, European Criminal Law, 2016, 56. 2 Miettinen, Samuli, Criminal Law and Policy in the European Union, 2014, 60. 3 OJ 2014, L 345/6. 4 Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013, (58). See more at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32013L0048. 5 Select Committee on Extradition Law, Second report, Extradition: UK law and practice (2015) para 343. See unter: https://www.publications.parliament.uk/pa/ld201415/ldselect/ldextradition/126/126.pdf. 6 John Spencer, Chapter 7, The UK and EU Criminal Law: Should we be Leading, Following or Abstaining? In: Globalisation, Criminal Law and Criminal Justice – Theoretical, Comparative and Transnational Perspectives, Mitsilegas, Valsamis/ Alldridge, Peter/ Cheliotis, Leonidas, 2015, 135, at 147. 7 Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union.


Lalegislazionepenale ISSN:2421-552X215.1.2018

the EU’s free-travel Schengen Area. The willingness to participate in the Schengen reflects the political perception both at domestic and European level.

Other examples of opt-out are the Charter of Fundamental Rights of the European Union,8 and the position of the United Kingdom and Ireland regarding the area of freedom, security and justice.9

After the 23rd of June 2016, the question concerned what to do next. What is the trend - even reluctance - to engage with a member State with an exclusion under the protocol in separate treaties? And how long has it taken to negotiate mutual legal assistance (MLA) agreements with non-EU states? How will European Criminal Law be affected? And in concreto, do we need to rethink UK-EU-BG extradition arrangements? In the next section we will consider questions over Criminal Justice Implications of Brexit analysing the example of extradition cases.

We need to start our answers by exploring the normative framework, and fixing the problems of the European Arrest Warrant system (EAW).10 To better understand the extradition proceedings between Member States, particularly between UK and Bulgaria, these cases will be discussed:

Case 1: Sofia City Court, Bulgaria v Atanasova -Kalaidzhieva [2011] EWHC 2335 (Admin) (09 September 2011), ([2011] EWHC 2335 (Admin); From England and Wales High Court (Administrative Court) Decisions;

Case 2: Ratchev, R (on the application of) v Government Of Bulgaria & Anor [2000] EWHC Admin 343 (17 May 2000) ([2000] EWHC Admin 343; From England and Wales High Court (Administrative Court);

Case 3: Ninedays v District Prosecutor's Office of Varna Bulgaria [2014] EWHC 4416 (Admin) (20 November 2014), ([2014] EWHC 4416 (Admin); From England and Wales High Court (Administrative Court);

Case 4: Nikolov v Regional Prosecutor's Office Pazardjik (Bulgaria) [2015] EWHC 3318 (Admin) (06 November 2015) (Highlight Search Terms) ([2015] EWHC 3318 (Admin); From England and Wales High Court (Administrative Court);

Case 5: Georgiev, R (on the application of) v Sofia Prosecutor's Office & Supreme Cassation Prosecutor's Office Bulgaria [2012] EWHC 3979 (Admin) (19 December 2012) ([2012] EWHC 3979 (Admin); From England and Wales High Court (Administrative Court);

Case 6: Penelope Hodge Thomas-Smith and Philip Thomas-Smith (on the application of) v Burgas District Court, Bulgaria;

Case 7: D.R.E.H. v Sliven District Court, Bulgaria. These decisions are supported by and in compliance with the principle of

procedural fairness and meet human rights standards.

8 Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom. See also Roland Winkler, Der Grundrechtsschutz in der Europäischen Union nach dem Vertrag von Lissabon Eine erste Würdigung, in Processus Criminalis Europeus, Petrova, Aneta, 2008, 23, at 28. 9 Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice. 10 Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedure between member states (2002/584/JHA).



II. I Cannot Walk In Your Shoes

The United Kingdom and Bulgaria are unitary states. Between the United Kingdom and Bulgaria there is a general structural distinction. Both states are examples for the civil and common law systems. The United Kingdom has a common law system of justice.

Statutory interpretation in extradation cases is the only source used by courts. The context shapes the Authority of domestic Courts. While Extradition Appeals in the United Kingdom are heard in the Administrative Court, extradition cases in Bulgaria are tried in the Criminal Courts.11

While there was considerable overlap between the United Kingdom and Bulgaria (the United Kingdom and Bulgaria were in a trio with Estonia for the presidency of the Council of the European Union) 12 , the latter faced significant additional problems to achieve sustainable institutonal development, because of corruption and organised crime.13 Bulgaria joined the EU in 2007 under the condition to continue the reforms in the fields of judicial reform, corruption and organised crime. Bulgaria commits to ensuring the rule of law of the country is correctly applied, to implement European law, to protect witnesses, to introduce further amendments and ensure impartiality of members of the judiciary (“more transparency and objectivity” on judicial appointments), and so forth.14 Ongoing assessment needs to occur in the context of Special monitoring mechanism, called Control and Verification Mechanism (CVM).15 Progress reports are more than just evaluation. They should contribute to improving Bulgarian judiciary and law enforcement (The reports “should support the effort to carry reform through into change on the ground”).16

Having explained the common theoretical background, we will now analyze two issues in the relationship between extradation framework and practice, the normative framework and extradition law practice.

III. Extradition Law The criminal justice and in particular the extradition is an important constituent

element of the Area of Freedom, Security and Justice (AFSJ). We suspect that the future

11 Edward Grange (Author), Rebecca Niblock, Extradition Law: A practitioner's guide, Legal Action Group, 2015. 12 See more at: http://www.novinite.com/articles/175759/Bulgaria%2C+Estonia%2C+Austria+to+CoordinateEU +Presidency+Priorities+Next+Week#sthash.0JOGm3vm.dpuf. 13 Petrova, Aneta, Bessere Justiz und Innere Verwaltung durch Vorbehalte? - Die Schutzklauseln im Bereich „Justiz und Inneres“ aus der Sicht der neuen Beitrittsländer-, Festschrift für Hans-Gert Pöttering, 2008, 31, at 35. 14 See the last Report from the Commission to the European Parliament and the Council on Progress in Bulgaria under the Co-operation and Verification mechanism, Brussels, 27.1.2016, COM(2016) 40 final. 15 See all Reports (2007-2016) on Progress in Bulgaria under the Co-operation and Verification mechanism at: http://ec.europa.eu/cvm/progress_reports_en.htm. The last annual report was published on January 27, 2016. 16 Commission reports on progress in Bulgaria under the Co-operation and Verification Mechanism, europa.eu/rapid/press-release_IP-15-3821_en.htm.



of UK participation in the European Arrest Warrant will be a major issue. Recent examples of extradition cases include Sofia City Court, Bulgaria v Atanasova-Kalaidzhieva; Ninedays v District Prosecutor's Office of Varna Bulgaria; Georgiev, R (on the application of) v Sofia Prosecutor's Office & Supreme Cassation Prosecutor's Office Bulgaria; Ratchev, R (on the application of) v Government Of Bulgaria & Anor, Georgiev, R (on the application of) v Sofia Prosecutor's Office & Supreme Cassation Prosecutor's Office Bulgaria, and Vasilev v Regional Prosecutor's Office, Silistra, Bulgaria; Nikolov v Regional Prosecutor's Office, Pazardjik, Bulgaria; Penelope Hodge Thomas-Smith and Philip Thomas-Smith (on the application of) v Burgas District Court, Bulgaria; D.R.E.H. v Sliven District Court, Bulgaria.

The cases address the UK's extradition arrangements with Bulgaria, how extradition is continuously affected by Brexit’s context and negotiation with the EU, and how in concreto does extradition between the two countries work.

This section includes a set of examples that cover nearly every aspect of extradition law practice. In each case the human rights standard that a decision to charge and a decision to try have been made has been carefully written to illustrate important values, such as fairness and equality or one or more best law enforcement practices (for example, in case „Ratchev, R (on the application of) v Government Of Bulgaria & Anor“17 the Bulgarian authorities sought the return of a person who had been tried and convicted in his absence; in case „Sofia City Court, Bulgaria v Atanasova –Kalaidzhieva“18 Dimintrinka Atanasova-Kalaidzhieva fears for his life and that he does not believe he will be given a fair trial.)

1. Extradition Procedure in the United Kingdom and Bulgaria The transition from the Council Framework Decision of 13 June 2002 on the

European arrest warrant and the surrender procedure between member States to the Bulgarian Constitution wasn't a seamless one. The Bulgarian Constitution was amended.19 Art. 25 IV Bulgarian Constitution provides that “No Bulgarian citizen may be surrendered to another State or to an international tribunal for the purposes of criminal prosecution, unless the opposite is provided for by international treaty that has been ratified, published and entered into force for the Republic of Bulgaria”, ("Български гражданин не може да бъде предаден на друга държава или на международен съд за целите на наказателно преследване, освен ако това е предвидено в международен договор, ратифициран, обнародван и влязъл в сила за Република България"). The next step was the implementation of the Extradition and EAW Act.

In July 2005, a new Extradition Act (Закон за екстрадицията и Европейската Заповед за Арест) was enacted.20 The difference between the new extradition regime

17 Ratchev, R (on the application of) v Government Of Bulgaria & Anor17 [2000] EWHC Admin 343 (17 May 2000) ([2000] EWHC Admin 343; From England and Wales High Court (Administrative Court) Decisions. 18 [2011] EWHC 2335 (Admin). 19 State newspaper 18/25.02.2005. 20 State newspaper 46/3.06 2005 and amendments 86/28.10.2005; 52/6.06.2008г.; 49/29.06.2010; 55/19.07.2011; 53/27.06.2014.



and the previous one lies in the implication of the European Arrest Warrant (EAW) as a new instrument for facing extradition. The European Arrest Warrant relies on mutual recognition.21 Moreover, it would be interesting to know on what legal basis this de facto recognition is founded.

UK has implemented the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States in the Extradition Act 2003 which has been substantially amended by the Crime and Courts Act 2013 and the Anti-social Behaviour, Crime and Policing Act 2014. 22 The amendments relate to proposals that were contained in the Scott Baker Panel’s review of the UK’s extradition arrangements. On the 14th of October 2010 Sir Scott Baker war appointed by the Home Office to lead an independent panel to conduct a review into the UK's extradition arrangements. A review of the United Kingdom’s extradition arrangements following the Written Ministerial Statement by the Secretary of State for the Home Department of 8 September 2010 was presented to the Home Secretary on 30 September 2011.23

Extraditions from the United Kingdom to Bulgaria are governed by Part 1 of the Extradition Act 2003. Under Part 1 of the Extradition Act 2003, subject of extradition proceedings are individuals who are sought by another EU member State to face criminal proceedings or to serve sentences if they have already been convicted. The extradition proceedings include three stages: pre-trial, trial at the Magistrates Court and appeal at the High Court.

2. Extradition Case That Helps Explain EU-BG Relations24

This section will explore some of the concrete implications of the EU-BG to assist comparative lawyers in keeping abreast of the ever-evolving world of European constitutionalism in the Criminal law enforcement context. Extradition is a formal process. It is part of the judiciary and judicial system. Extradition should guarantee individual’s participation in criminal proceedings. The individuals should be charged. Nevertheless, it’s not just the individual who is being charged. The question of guilty or innocent is not a subject of the court hearing. All extradition cases start off in the Magistrates Court (court of first instance) in Westminster, London. Appeals are heard in the Administrative Court and cases can be appealed to the Supreme Court. All extradition applications in Bulgaria should be heard in the District Courts, with pathways for review in the Appellate Courts.

21 Sarah Haggenmüller, The Principle of Proportionality and the European Arrest Warrant, Oñati Socio-Legal Series, v. 3, n. 1 (2013), 95-106, at 99, http://opo.iisj.net/index.php/osls/article/viewFile/194/102. 22 Compare with „A Review Of The United Kingdom’s Extradition Arrangements“ (Following Written Ministerial Statement by the Secretary of State for the Home Department of 8 September 2010), Presented to the Home Secretary on 30 September 2011, https://www.gov.uk/government/uploads/system/uploads/attachment_ data/file/117673/extradition-review.pdf. 23 Review of the United Kingdom’s extradition arrangements, Home Office, October 18, 2011, https://www.gov.uk/government/publications/independent-review-of-the-united-kingdoms-extradition-arrangements. 24 This is a website which carries most, but not all extradition cases: http://www.bailii.org/.



The following examples specify a connection between two normative regimes using the extradition cases showing how the EAW can be used effectively by the Judicial Authority of Bulgaria.

Cases are listed in chronological order.

3. Law in Action: Extradition From and To the UK Sofia City Court, Bulgaria v Atanasova -Kalaidzhieva25 The first case is Sofia City Court, Bulgaria v Atanasova – Kalaidzhieva.26 It links

direct extradition law‘s structure with ist relationship to the security services, business, politics and crime, e.g., to the corruption and organised crime that have affected Bulgaria for years.

The appellant Sofia City Court sought the extradition of the respondent Dimintrinka Atanasova-Kalaidzhieva to face murder charge. The respondent was a secretary of Bulgarian Prosecutor General Filchev (1999-2006) and a friend of the victim the barrister Nadegda Georgieva. She said that, if extradited, she would not receive a fair trial. Bench Division of the High Court of Justice Queen's dismiss the appeal.

The United Kingdom High Court of Justice examines whether the prosecution is being conducted in good faith or a fair trial is possible to justify the request. This test comes from Section 21 of the Extradition Act 2003. Section 21(1) states that “the Secretary of State takes the final decision after considering human rights issues - such as whether the suspect could be denied a fair trial or face inhumane treatment.”

The case of Atanasova-Kalaidzhieva is very complex. It comes down to an allegation that “Ms Georgieva was in possession of high quality audio surveillance equipment.”27 She sought refuge in the UK.

The factual background of the criminal proceedings is the follow: On the 28 of February, 2000 the defendant, Dimitrinka Todorova Atanasova - Kalaidzhieva (Димитринка Тодорова Атанасова - Калайджиева) was charged together with her husband, Plamen Kalaidzhiev, Orlin Avramov and Nikolai Georgiev Kolev with participating in murder of the barrister Nadegda Georgieva.

A lot of that has to do with Alexey Petrov (Алексей Петров) known as “The Tractor,” who is a former member of the anti-terror squad and a former business partner of Bulgaria’s Prime Minister, Boyko Borisov (2009-2013, 2014-2017) in Company Budoinvest. Nadegda Georgieva worked for Mr Alexey Petrov. He was an adviser and National Security agent at the national security agency, the Bulgarian New Scotland Yard, and an associate professor of corporate security and counterterrorism at the University of Plovdiv in Plovdiv, Bulgaria and at the University of National and World

25 [2011] EWHC 2335 (Admin). 26 Sofia City Court, Bulgaria v Atanasova - Kalaidzhieva [2011] EWHC 2335 (Admin) (09 September 2011), ([2011] EWHC 2335 (Admin); From England and Wales High Court (Administrative Court) Decisions. See more at: http://www.bailii.org/cgi bin/lucy_search_1.cgi?query=(extradition)%20AND%20(bulgaria)&mask_ path=ew/cases%20ew/legis%20ew/other%20wales/cases%20wales/legis%20wales/other%20uk/cases/UKPC%20uk/cases/UKHL%20uk/cases/UKSC&method=boolean&highlight=1&sort=rank&results=200. 27 [2011] EWHC 2335 (Admin), 5.



Economy in Sofia, Bulgaria. He was arrested operation codenamed “Octopus” and charged with being leader of a criminal group dealing in racketeering, extortion, prostitution, illegal drug trading, trading influence, money laundering, and tax evasion.28 England’ ex-Attorney General Lord Peter Goldsmith belongs to his defence counsel.

One of the defendants, Nikolay Georgiev Kolev (Николай Колев) was a senior military prosecutor and, on the 28th December 2002, he was shot dead outside his home by two men. His mafia-style murder remains unsolved. The senior military prosecutor Nikolay Georgiev Kolev cannot get justice in Bulgaria; the killer's motive remains a mystery. The case of Nikolay Georgiev Kolev got to the European Court of Human Rights in Strasbourg (ECHR). His family won a case against Bulgaria.29 The ECHR “holds that there has been a violation of Article 2 of the Convention in that the investigation into Mr Kolev's murder was ineffective and lacked the requisite independence”30, e.g., the investigation in this case had been neither independent nor effective.31 Why is the ECHR - Case of Nikolay Georgiev Kolev important? It helps us learn and understand the decision of the England and Wales High Court (Administrative Court) in extradition case Bulgaria v Atanasova – Kalaidzhieva. The Role of the Office of the Chief Public Prosecutor (OCPP) to build informal commitments and practices of Bulgarian “criminal enforcement and justice” was diverse and flexible.

The victim, Nadegda Georgieva and the respondent, Dimitrinka Todorova Atanasova - Kalaidzhieva are friends who worked closely with OCPP. Dimitrinka Todorova Atanasova – Kalaidzhieva was a privite secretary of Nikola Borosov Filchev, the Bulgarian Prosecutor General (1999-2006). He is referred as Prosecutor General, Chief General Prosecutor, Filchev, Prosecutor General Filchev in the decision of the High Court of Justice, Queen's Bench Division32 and as Mr F. in the ECHR Kolevi vs. Bulgaria.33 Since 1996 Nikola Borosov Filchev is a Head of the Chair of Criminal law Studies and since 2005 full professor of Criminal Law and penal lawmaking at the Law Faculty of the University of National and World Economy in Sofia, Bulgaria.

On Februar 28, 2000, after a full day at the office, Nadegda Georgieva returned to his home in Strelbiste neighborhood. What happened on February 28, 2000 would haunt her family forever to come as they tried to figure out who'd killed Nadegda Georgieva and why. Filchev was in her apartment this night (witness statements by

28 Sofia City Court, Bulgaria v Atanasova -Kalaidzhieva [2011] EWHC 2335 (Admin) (09 September 2011), 18-20, 23-25. 29 ECHR, 1108/02, Case of Kolevi v. Bulgaria, 5 November 2009, 138. 30 ECHR, 1108/02, Case of Kolevi v. Bulgaria, 5 November 2009, 6. 31 Sofia City Court, Bulgaria v Atanasova - Kalaidzhieva [2011] EWHC 2335 (Admin) (09 September 2011) ([2011] EWHC 2335 (Admin); From England and Wales High Court (Administrative Court) Decisions, 35: „There was an abundance of evidence which would have required any competent investigator to investigate a possible link between the killings of Mr Kolev and Ms Georgieva.“ 32 Sofia City Court, Bulgaria v Atanasova - Kalaidzhieva [2011] EWHC 2335 (Admin) (09 September 2011) ([2011] EWHC 2335 (Admin); From England and Wales High Court (Administrative Court) Decisions, 2-8; 10-15; 18-25. 33 ECHR, 1108/02, Case of Kolevi v. Bulgaria, 5 November 2009, 8, 13, 20, 54-56, 82, 92, 104, 106, 108, 114-116, 196-198, 207, 209, 210.



Nanka Koleva, wife of the killed in 2002 prosecutor Nikolay Kolev, and Plamen Simov). Filchev is somebody who stalked her because she was pregnant from him.34

Three months after the murder of Nadegda Georgieva the personal secretary of Filchev, Dimitrinka Todorova Atanasova – Kalaidzhieva is in U.K. She returned to Bulgaria from the U.K where she is suspected of murder. In summer 2000 she was subject to a death threat. As a result, on the 17th of August 2000, she left Bulgaria again. In response to Atanasova – Kalaidzhieva's asylum application, Bulgarian authorities demanded her immediate extradition. On the July 16, 2001 the OCPP has requested that UK authorities extradite Dimitrinka Todorova Atanasova – Kalaidzhieva. The OCPP filed the request through the Ministry of Justice of Bulgaria.

The investigation of this case was being handled by the Criminal Investigation Service, Sofia (Столична следствена служба, СтСлС). The investigating magistrate (следовател) was Ognjan Kostov (следователят Огнян Костов) and he was removed in December 2000 by the Prosecutor General Filchev with Plamen Raichev (Пламен Райчев), sitting at the National Investigation office (Национална следствена служба), the former Specialized Investigation office (Специализираната следствена служба). The authority granted to this Investigation office is substantially larger than that granted to the Criminal Investigation Service, Sofia. Since 2001 for the case is competent the Transport Police Detention Centre. The investigation of this case is being handled by Sofia prosecutor's office.

Zeko Iordanov, sitting at Prosecutors` Offices of Cassation (Цеко Йорданов от следствения отдел на Върховната касационна прокуратура) is in charge with unauthorized disclosure of national security-related secrets. In 2001 investigating magistrate Iliev was charged. As an investigating magistrate, Iliev had immunity. The case was therefore terminated.

On the 25th of March 2004, Deputy Chief of the Sofia City Court George Kolev (Георги Колев), sitting at Sofia City Court started the trial. Since 2010 Mr George Kolev is a Chief of the High Administrative Court.35 The Sofia prosecutor's office requested closed hearings. The court was not open to the general public because secret intelligence were introduced by the Sofia prosecutor's office.

A three-member panel (Chairwoman is Judge Vera Chochkova (Вера Чочкова)), began hearings on October 9th, 2006. Atanasova - Kalaidzhieva’s absence from Bulgaria is not the only reason why decisions to charge and a decision to try have been made six years after the murder of Nadegda Georgieva: she was charged and tried in her absence of murder. Judge Vera Chochkova terminated court proceedings and forwarded the case-file to the respective prosecutor on the grounds of “removable substantial violations of procedural rules during preliminary proceedings, which have resulted in the restriction of procedural rights of the accused or his counsel” pursuant art. 288 Part I of the Bulgarian Penal Procedure Code.

On November the 21st 2007, Dimitrinka Todorova Atanasova – Kalaidzhieva was arrested in the U.K. On January the 28th 2008 the Sofia City Court decided to stay the proceedings until the extradation of Dimitrinka Todorova Atanasova – Kalaidzhieva. 34 The court record for 22st November 2010, Orlin Avramov‘s witness statement. 35 Sofia City Court, Bulgaria v Atanasova -Kalaidzhieva [2011] EWHC 2335 (Admin) (09 September 2011), 25.



The European Arrest Warrant (EAW) was issued on the 17th of June 2007 by the Sofia City Court for detention of Dimitrinka Todorova Atanasova – Kalaidzhieva with the purpose of a criminal prosecution. The extradition case was heard on May 19, 2008. The Execution of a EEW issued against Dimitrinka Todorova Atanasova – Kalaidzhieva was discharged.36

The Sofia City Court record of the 7th January 2010 discloses that the defendant did not appear, and states: "She has left the country, and is at present in England with unknown address."

The extradition of the defendant was requested a second time by the Bulgarian authorities for murder. The European Arrest Warrant (EAW) was issued on the 26th of January 2010 by the Sofia City Court for detention of Dimitrinka Todorova Atanasova – Kalaidzhieva. The U.K. Court asked questions about Filchev. How did the Sofia City Court respond to the U.K. Court? The Sofia City Court has not adequately responded.

The bringing of the defendant to justice was once again delayed in 2011, when on March 17, 2011 Senior District Judge Riddle, sitting at the City of Westminster Magistrates Court discharged the respondent from the extradition proceedings brought under Part 1 of the Extradition Act 2003, and secondly on September 9, 2011 Lord Justice Pitchford and Mr Justice Supperstone, sitting In The High Court Of Justice, Queen's Bench Division (Отделение на Кралската скамейка към Върховния съд) refused to extradite Dimitrinka Todorova Atanasova – Kalaidzhieva.37 Extradition was refused because the “request constituted an abuse of the process of the court” and because “this latest request was an abuse of the process of the court”.

The Nadegda Georgieva trial is over. On the 9th of October 2012 a Court of first instace (Владимир Астарджиев) found Dimitrinka Todorova Atanasova – Kalaidzhieva, her ex-husbund, Plamen Kalaidzhiev, and Orlin Avramov innocent of charge of murder. The judgement was appealed by Prosecutors` Offices of Appeals. The first appeals was handled by the Sofia Court of Appeals on the May the 30th 2014 on the ground that there was an error in fact-finding; the second one by the Supreme Court of Casation (A three-member panel: Judge Юрий Кръстев и Judge Елена Авдева и Judge Бисер Троянов) on January the 26th 2015, on the ground that of non-compliance with procedural law in the trial procedure and an error in the interpretation or application of law in the judgment. 38 The appeals against the acquittal decision were dismissed. The murderer was never found. The charge of murder was not confirmed by the courts?). Filchev was the name of the prosecutor who was unfairly ruining Atanasova – Kalaidzhieva's life and denying a chance for a fair trial

36 Atanasova v HMP Holloway & Anor [2009] EWHC 2740 (Admin) (04 November 2009), ([2009] EWHC 2740 (Admin); From England and Wales High Court (Administrative Court) Decisions. 37 Sofia City Court, Bulgaria v Atanasova - Kalaidzhieva [2011] EWHC 2335 (Admin) (09 September 2011) ([2011] EWHC 2335 (Admin); From England and Wales High Court (Administrative Court) Decisions. 38 Bulgarian Supreme Court of Cassation, First Criminal Devision, 37, (24 March 2015). See the decision at: http://www.vks.bg/vks_p10_01.htm.



because she was tried in absentia. She did not exercise her right to be present and she did not have an adequate opportunity to defend herself.39

The Court stressed that “… there have in fact been two prominent decisions, one from the High Court and the other from the European Court of Human Rights that separately and together raise the most serious questions. Those questions require an answer. None has been provided. It is not so much that the judgment of the previous court has a bearing on this decision, as that the facts remain substantially as before."40 “There is an abundance of evidence which casts doubt about the independence of the investigative and prosecuting process from the personal will of the Prosecutor General who undoubtedly had a personal interest in it.“41

Ratchev, R (on the application of) v Government Of Bulgaria & Anor42

The next judgement of the United Kingdom High Court of Justice in Ratchev concerns fairness standard in Bulgarian criminal proceedings. On 31st January 1990 Atanas Momtchilov Ratchev was convicted and sentenced in his absence to a custodial sentence of three years for burglary. The magistrate stated that the Bulgarian court was entitled to proceed in the absence of Mr Ratchev despite the fact that he did not have any knowledge of his trial,43 that he would not be able to have a new evidentiary hearing in the appeals proceedings,44 and “that there was nothing more a court-appointed counsel acting on his behalf could have done in the trial in Mr Ratchev's absence.“45

The case “Ratchev, R (on the application of) v Government of Bulgaria & Anor”46 shows why criminal proceedings in absentia under the requirements of Article 268, Part III, Section 1 of the Penal Procedure Code were criticised and it is also usefull to discuss costs of fair criminal proceedings.

We are seeking to understand the Bulgarian international commitments and to prove what guarantees the Bulgarian judicial system provides. Firstly, in 1988, between the United Kingdom and Bulgaria there was no extradition treaty. On the 7th of May 1992 Bulgaria joined to the Council of Europe. As it is stated in the decision, Bulgaria became a party to the European Convention on extradition in 1994. The UK entered a restriction to article 1 of the European Convention on extradition. It provides that “the United Kingdom reserves the right to refuse to grant extradition which is requested pursuant to or for the purpose of executing a conviction or sentence pronounced 39 Sofia City Court, Bulgaria v Atanasova - Kalaidzhieva [2011] EWHC 2335 (Admin) (09 September 2011) ([2011] EWHC 2335 (Admin); From England and Wales High Court (Administrative Court) Decisions, 6: „She received further threats from Mr Filchev via her mobile phone in October 2000.“ 40 Sofia City Court, Bulgaria v Atanasova - Kalaidzhieva [2011] EWHC 2335 (Admin) (09 September 2011) ([2011] EWHC 2335 (Admin); From England and Wales High Court (Administrative Court) Decisions, 27. 41 Sofia City Court, Bulgaria v Atanasova - Kalaidzhieva [2011] EWHC 2335 (Admin) (09 September 2011) ([2011] EWHC 2335 (Admin); From England and Wales High Court (Administrative Court) Decisions, 35. 42 Ratchev, R (on the application of) v Government Of Bulgaria & Anor42 [2000] EWHC Admin 343 (17 May 2000) ([2000] EWHC Admin 343; From England and Wales High Court (Administrative Court) Decisions. 43 [2000] EWHC 343 (Admin), 15 3). 44 [2000] EWHC 343 (Admin), 15 4). 45 [2000] EWHC 343 (Admin), 15 5). 46 Ratchev, R (on the application of) v Government Of Bulgaria & Anor46 [2000] EWHC Admin 343 (17 May 2000) ([2000] EWHC Admin 343; From England and Wales High Court (Administrative Court) Decisions.



against the person tried in his absence from the proceedings in respect of which the conviction was pronounced."

Secondly, the issue was not whether the warrant should have been issued against the convicted person, but why “the court used this exceptional procedure of proceeding in the absence of the defendant without establishing what efforts had been made to discover his address.” The Supreme Court of Judicature, Queen's Bench Division focused exclusively on the criminal procedure in absentia in this case.47

The facts underlying the extradition proceedings are briefly summarised as follows: Atanas Momtchilov Ratchev is “a British subject through marriage and residence. “ On 13th July 1988 he left Bulgaria. He moved to the UK and married his wife, a UK citizen, in Bulgaria in 1988. On 31st January 1990 Atanas Momtchilov Ratchev was convicted of serious offences in a Bulgarian court and was sentenced to serve a prison sentence of three years. The extradition of Ratchev was sought by the Bulgarian authorities, which issued a “conviction” request extradition pursuant to Part III of the extradition Act, 1989 and the European Convention on extradition Order on 16th February 1998. Mr Ratchev was arrested in his home in the UK. The Court stated that it was clear that the authorities knew where Mr Ratchev was well before the hearings.

The court requested documentation from Bulgaria: "We think it would be necessary in such cases to require the requesting state to provide details of the relevant statutory provisions together with an account of the conduct of the trial of the fugitive. This would allow the United Kingdom to refuse to surrender if, for example, the fugitive had been denied adequate rights of defence at his trial".48 The Supreme Court of Judicature, Queen's Bench Division made examined documentation received from Bulgaria.

On the May 17, 2000 the Supreme Court of Judicature, Queen's Bench Division refused to extradite Atanas Momtchilov Ratchev on the grounds that “the accusation against him was 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“,49 or “by reason of the trivial nature of the offence; or by reason of the period of time since he allegedly committed it or have become unlawfully at large, as the case may be“.50

Lord Justice Henry and Mr Justice Alliott found that if Mr. Ratchev was to be “returned to Bulgaria, there is no way he can contest the counts he admitted”51 and that it would be a flagrant breach of fair trial. The request seeks his surrender to serve the outstanding sentences. The Supreme Court of Judicature, Queen's Bench Division made three other findings in his consideration:

47 See „A review of the UK’s extradation arrangements“, 2011, 82 under https://www.gov.uk/government/ uploads/system/uploads/attachment_data/file/117673/extradition-review.pdf. 48 Ratchev, R (on the application of) v Government Of Bulgaria & Anor48 [2000] EWHC Admin 343 (17 May 2000) ([2000] EWHC Admin 343; From England and Wales High Court (Administrative Court) Decisions, 9 ii. 49 Section 11(3)(a). 50 Section 11(3)(b). 51 Section 15(4).



“That he did not believe Mr Ratchev in his account of how he came to sign the confession, and that there was clearly a prima facie case against him.52

That the Bulgarian court was entitled to proceed in the absence of Mr Ratchev despite the fact that he was not warned of his trial.53

That there was nothing more court-appointed counsel acting for him could have done in the trial in Mr Ratchev's absence.“54

The Court ordered the discharge of Atanas Momtchilov Ratchev.

Ninedays v District Prosecutor's Office of Varna Bulgaria:55 The Double Jeopardy Case

The next case concerns the issue of double jeopardy and the question if the UK should extradite William Ninedeys. In Ninedays v District Prosecutor's Office of Varna Bulgaria56 the appellant William Ninedeys was not extradited.

District Judge McPhee, sitting at Magistrates' Court in London since 9.9.2002, agreed to a request by the the Judicial Authority of Bulgaria on 6 February 2012: the sentenced citizen should be sent back to Bulgaria to serve a five years sentence for one offence.

On the 4th February 2008 the Karlsruhe Public Prosecutor's Office charged the defendant William Ninedeys with “fraud in two cases and attempted fraud in one case in accordance with §§ 263(1), (2), (3) no. 2, 22, 23 and 53 Strafgesetzbuch [German Criminal Code]."57

The Bulgarian authorities sought Ninedeys’s extradition for the purpose of serving a sentence of imprisonment (a "conviction" warrant requesting) imposed following conviction for an offence consisting of having obtained money by deception and money laundering offences under the Proceeds of Crime Act 2002.

The appellant William Ninedeys was arrested with a European Arrest Warrant issued by the Judicial Authority of Bulgaria on the 6th of February 2012.

In a decision delivered on the 20th November 2014, Lord Justice Aikens and Mr Justice Nicol discharged the appellant on the basis that his extradition “would offend against the rule of double jeopardy.“58

As Lord Justice Aikens of the Court of Appeal said, “in the particular facts of this case the money laundering offences with which the appellant was charged in Bulgaria did not add to the culpability of the underlying offence for which he had already been convicted and sentenced in the German proceedings.“59

52 Section 15(2). 53 Section 15(3). 54 Section 15(5). 55 Ninedays v District Prosecutor's Office of Varna Bulgaria [2014] EWHC 4416 (Admin) (20 November 2014). 56 [2014] EWHC 4416 (Admin). 57 [2014] EWHC 4416 (Admin), 11. 58 [2014] EWHC 4416 (Admin), 30. 59 [2014] EWHC 4416 (Admin), 35.



Nikolov v Regional Prosecutor's Office Pazardjik (Bulgaria) The next case is Nikolov v Regional Prosecutor's Office Pazardjik (Bulgaria).60

The appellant, Petar Stoimenov Nikolov (Петър Николов) is the subject of a European Arrest Warrant ("EAW") issued by the Regional Prosecutor's Office Pazardjik. Mr David Josse was the solicitor in the extradition case, assisted by Mr Azize Chelliah. Lord Justice Beatson and Mr Justice Mitting, the extradition judges handling Nikolov's hearing, discharged the appellant from the extradition for lack of evidence (“… 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”.). 61

On November 6, 2015 Lord Justice Beatson and Mr Justice Mitting, sitting in the High Court of Justice, Queen's Bench Division, Administrative Court ordered that the “proceedings should be stayed pending the cases before the District Judge.“62 Under the ruling by Lord Justice Beatso and Mr Justice Mitting, the requesting state, Regional Prosecutor's Office Pazardjik must “consider whether the documentation before this court is adequate.“63

The Court ordered that “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.”64

Georgiev, R (on the application of) v Sofia Prosecutor's Office & Supreme Cassation Prosecutor's Office Bulgaria 65

In a famous case Georgiev, R (on the application of) v Sofia Prosecutor's Office & Supreme Cassation Prosecutor's Office Bulgaria,66 the Bench Division of the High Court of Justice Queen's dismissed the appeal. It stressed: “The court may either allow or dismiss the appeal. It may allow it only if, amongst other things, its conclusion is that the judge ought to have decided a question before her at the extradition hearing

60 Nikolov v Regional Prosecutor's Office Pazardjik (Bulgaria) [2015] EWHC 3318 (Admin) (06 November 2015), ([2015] EWHC 3318 (Admin); From England and Wales High Court (Administrative Court) Decisions. 61 [2015] EWHC 3318 (Admin), 3. 62 [2015] EWHC 3318 (Admin), 1. 63 [2015] EWHC 3318 (Admin), 2. 64 [2015] EWHC 3318 (Admin), 4. 65 Georgiev, R (on the application of) v Sofia Prosecutor's Office & Supreme Cassation Prosecutor's Office Bulgaria [2012] EWHC 3979 (Admin) (19 December 2012) ([2012] EWHC 3979 (Admin); From England and Wales High Court (Administrative Court) Decisions. 66 [2012] EWHC 3979 (Admin).



differently, and if she had decided the question the way she ought to have done, she would have been required to order the person's discharge”. Tihomir Georgiev argued that “here is a near certainty, alternatively a real risk, that his right to life under Article 2 will be violated by the authorities, or that the state will fail to prevent his right to life being violated by non-state actors in that country.“67 A further grounds of appeal are Article 3 and Article 6 ECHR. The appellant also rises human rights issues.

The factual background in the case Georgiev, R (on the application of) v Sofia Prosecutor's Office & Supreme Cassation Prosecutor's Office Bulgaria may be described as follows:

Tihomir Georgiev had been investigated over a long period of time for various robberies, assaults, drug deals, racketeering, prostitution, blackmail, fraud and money-laundering. He was accused with five offences: participation in organised crime; distributing controlled drugs, robbery, a low level assault, kidnap or false imprisonment and convicted of murder committed on 15 June 2007. Tihomir Georgiev was the main witness of the prosecution in the case against another criminals Zlatomir Ivanov,68 Dimitar Vuchev at al. He appealed unsuccessfully to the Bench Division of the High Court of Justice Queen's to avoid extradition.

Tihomir Georgiev, known as Tisho the Boxer (Тихомир Георгиев-Тишо Боксьора) was jailed in 2010 for murdering his own drug dealers Emil Gerasimov, known as The Black (Емил Герасимов-Черния) on June 14, 2007.

Interpol had issued a Red Notice for the arrest of notorious Bulgarian gangster Tihomir Georgiev. Georgiev was convicted in 2011.69 The Bulgarian Court had issued, and requested a warrant for the arrest and extradition of Tihomir Georgiev.

He disappeared at the beginning of May 2011 after the Bulgarian Supreme Court of Cassation finally confirmed his sentence. He was arrested in London on 21 January 2012 and was flown to Bulgaria to face trial and serve a sentence. In that hearing, the United Kingdom High Court of Justice stated “throughout the judicial process, it is apparent that he was legally represented, and the sentence which was imposed eventually of 15 years70 was one which was less than that which had been imposed at one stage at of 18 years,71 where there was obviously an error which was corrected. In my judgment, there is nothing in that history to suggest that there is any real risk of a flagrant denial of a fair trial“, and ruled that there would be no violation of Articles 2, 3 and 6 of the Human Rights Convention. Tihomir Georgiev serves fifteen years in prison after admitting numerous offences of murder, illegal drugs trafficking and participation in organized crime.

67 [2012] EWHC 3979 (Admin), 2. 68 [2016] Supreme Court of Cassation 27 (Crim), (Решение Nr 371/ 19.05.2016 г. по дело 844/2015 г. (делото срещу Златко Баретата)). See under http://www.vks.bg/Reshenia/3NOR371_19_05_2016.pdf. 69 [2011] Supreme Court of Cassation 223 (Crim), (Решение Nr 223/ 25.07.2011 г. (Тихомир Георгиев)). See under http://www.vks.bg/vks_p10_113.htm. 70 [2011] Supreme Court of Cassation 223 (Crim), (Решение Nr 223/ 25.07.2011 г. (Тихомир Георгиев)). See under http://www.vks.bg/vks_p10_113.htm. 71 [2010] Supreme Court of Cassation 491 (Crim), Решение Nr 491/ 12.04.2010 г. (делото на Тихомир Георгиев). See under http://www.vks.bg/vks_p10_59.htm.



Penelope Hodge Thomas-Smith and Philip Thomas-Smith (on the application of) v Burgas District Court, Bulgaria

The first extradition case to the UK for 2016 is the Penelope Hodge Thomas-Smith

and Philip Thomas-Smith (on the application of) v Burgas District Court, Bulgaria case. In this case an accusation warrant was issued. The pair was charged with theft of paintings from former neighbor of comedian Billy Connolly in 2001.

Penelope Hodge Thomas-Smith was a 61 old Scottish women and Philip Thomas-Smith a 67 old Scottish man facing extradition to the UK on a theft by housebreaking charge. They were arrested in Sozopol, in the Burgas region of Bulgaria for extradition in May 2016.

The respondents, Penelope Hodge Thomas-Smith and Philip Thomas-Smith were the subjects of a European Arrest Warrant issued by the Edinburgh authorities. In June 2016, a chamber judgment by the Burgas Appellate Court rejected Thomas-Smiths' appeal against extradition to the UK. This finding rests on two grounds: the conduct constitutes an offence in Bulgaria in accordance with Section 195 Bulgarian Criminal Code, and there is sufficient evidence for the persons to stand trial.

D.R.E.H. v Sliven District Court, Bulgaria

The most recent extradition case to the UK is D.R.E.H. v Sliven District Court, Bulgaria. 72 D.R.E.H. was the subject of a European Arrest Warrant issued by Westminster Magistrates’ Court. The accusation warrant was issued by the Westminster Magistrates’ Court on the 13th of October 2016. In the EAW Judge Quentin Purdy alleges that the respondent was the principal author of an offence regarding child pornography and cybercrimes. The maximum sentence for each of these offences is ten years imprisonment. He was arrested on 24 October 2016.

The respondent argued that extradition would violate his constitutional right to life. D.R.E.H. was extradited from Bulgaria in accordance with Section 44 of the Bulgarian Extradition Act 2005.

IV. Concluding remarks

72 [2016] District Court Sliven 14 (Crim), (Решение Nr 14/28.10.2016 г.). See under http://legalacts.justice.bg /Search/GetActContentByActId?actId=So6Pk3GypqY%3D.



This chapter reflects a mix of theoretical and practical approaches, offering a detailed examination of EU-UK deal and BG-UK implications in criminal law. Having different perspectives on Brexit will help to understand consequences of it on European Criminal Law, and in particular for Bulgaria. This paper explores some of those challenges to assist comparatists in keeping abreast of the ever evolving world of European constitutionalism in Criminal law enforcement context. We did research on impact of Brexit on the EU’s relations with EU countries and saw Bulgaria’s opinion on Brexit.

In summary, we will now make the following conclusions: UK73 and Bulgaria are not Schengen states for different reasons. The Bulgarian EU-membership is associated with Cooperation and Verification Mechanism. This monitoring mechanism was set up “to address shortcomings in judicial reform and the fight against corruption and organised crime”.74 Bulgaria has been an EU member state since 2007. To all proceedings concerning requests for extradition to Bulgaria is applicable Part 1 of the Extradition Act 2003.75

The seven actual cases discussed capture human stories, face theoretical problems and engage the challenges and opportunities of Brexit. They are examples of the analytical approach and stringent review standard in evaluating the Bulgarian's requests for EEW used by the United Kingdom’s High Court of Justice. The cases faced issues regarding prohibition of torture, inhuman or degrading treatment, right to liberty and the right to a fair trial. Four of these selected court decisions on extradition cases show that the credibility of the Bulgarian judicial system suffers under the weight of corruption and organized crime.

How does extradition case law fit into a Brexit context? How would Brexit change EU criminal policy? How to communicate the political consensus on the UK’s cooperation with EU policies in the AFSJ?76 It may be that the EU will be able to move forward on integration on criminal law matters without the UK (which was a holdout on a lot of issues, such as having a single European prosecutor). But that might depend on the deal that the UK is able to work out with the EU. As for extradition, we don't think it would change the UK's relationship with non-EU members (like the United States, China or Russia) since it has its own bilateral extradition agreements. Whether the UK will have to negotiate extradition agreements with each EU member state individually is a very interesting question. We have no idea of which the answer may be. It might be, that the deal with the EU will work some of these questions out, but we're not sure about it. It will depend from the negotiations outcomes. But there

73 See Protocol on the application of certain aspects of Article 7a of the Treaty establishing the European Community to the United Kingdom and to Ireland, Treaty of Amsterdam. 74 Progress report Bulgaria 2017 [COM(2017)43], https://ec.europa.eu/info/files/progress-report-bulgaria-2017-com-2017-43_en. 75 See the amendments in Anti-Social Behaviour, Crime and Policing Act 2014 (ASBCPA)https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/398008/asbcpa-consultation-response.pdf. 76 See „Impact of Brexit on policing and criminal justice: a reading list“, 16 December 2016, http://researchbriefings.files.parliament.uk/documents/CBP-7715/CBP-7715.pdf.



needs to be a uniform consultation mechanism between the courts in the issuing and the executing state.77

77 See 1st Report of Session 2014 – The European Arrest Warrant Opt-in unter: https://www.publications.parliament.uk/pa/ld201415/ldselect/ldextradition/63/63.pdf.

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