Nikolics v The City Court of Szekszard (A Judicial Authority In Hungary) [2013] EWHC 2377 (Admin)

Case No CO/6227/2013[2013] EWHC 2377 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/07/2013
Before
THE HON MR JUSTICE BURNETT
Between
LASZLO NIKOLICSClaimantTHE CITY COURT OF SZEKSZARDDefendant
Myles Grandison (instructed by Hodge Jones and Allen) for AppellantHannah Hinton (instructed by the CPS) for Judicial AuthorityHearing Hearing dates: 22 July 2013
JudgmentThe Hon Mr Justice Burnett:
[1]On 20 May 2013 District Judge Zani sitting at Westminster Magistrates Court ordered the extradition of the appellant to Hungary when he gave a reserved judgment. Hungary is a category 1 territory for the purposes of the Extradition Act 2003 [“the 2003 Act”]. There had been a contested extradition hearing on 29 April 2013. The appellant is wanted in Hungary to stand trial for one offence of theft alleged to have taken place on 13 November 2008. A European arrest warrant was issued by the City Court of Szekszard, Hungary on 5 April 2012 which was certified by the Serious Organised Crime Agency on 6 August 2012.[2]This is the appellant’s appeal pursuant to Section 26 of the 2003 Act.[3]Before the District Judge the appellant had raised three issues. First, that the particulars provided in the European Arrest Warrant were inadequate for the purposes of Section 2(4)(c) of the 2003 Act. Section 2(4) requires the warrant to contain certain information including:
“(c) particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence.”
The argument advanced by the appellant was that further information provided by the Hungarian authorities demonstrated that the account contained within the warrant was inaccurate. The second issue concerned whether the description of the offence in the warrant amounted to an extradition offence for the purposes of Section 10 of the 2003 Act. The third issue arose under Section 13 of the 2003 Act. That provides “A person’s extradition to a category 1 territory is barred by reason of extraneous considerations if (and only if) it appears that – (a) the Part 1 warrant issued in respect of him (though purporting to be issued on account of the extradition offence) is in fact issued for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinion, or b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions.” The appellant is a member of the Roma community. His argument was that Roma people are subject to racial prejudice at the hand of Judges in Hungary. It was not suggested that the warrant was issued by reason of an extraneous consideration. It was the risks on return, relevant for section 13(b), that were advanced in support of this ground.[4]The District Judge rejected all those arguments. In this appeal Mr Grandison, who appears on behalf of the appellant, does not pursue the issue raised under section 10 of the 2003 Act. The issue relating to the particulars provided in the warrant has been reformulated in this appeal. It is argued that the disparity between the descriptions of the alleged offence found in the warrant and subsequent information provided by the Hungarian authorities has resulted in an abuse of process of the sort identified by the Supreme Court in Zakrzewski v. Regional Courts in Lodz Poland [2013]1 WLR 324.[5]The appellant contends that the District Judge reached the wrong conclusion on the issue raised under section 13(b) of the 2003 Act. In support of that ground the appellant has introduced additional material relating to the prevailing political situation in Hungary which has become available since the hearing before the district judge. Miss Hinton, who appears on behalf of the judicial authority in Hungary, recognises that it is appropriate that such material should be considered in the appeal. The Abuse Argument[6]In Zakrzewski the Supreme Court decided that the validity of a warrant depended on whether the prescribed particulars were found in it and not on whether they were in fact correct. It was therefore not possible for a requested person to challenge the validity of a warrant which contained the prescribed particulars by producing, or relying upon, extraneous evidence which tended to show that the statements or information were wrong. The only juridical basis for an enquiry into the accuracy of the particulars in the warrant arose from the inherent right of the court to ensure that its process was not abused. In paragraph 13 of his judgment (with which the other justices agreed) Lord Sumption said this about the circumstances in which an abuse argument could be advanced:
“The statements in the warrant must comprise statutory particulars which are wrong or incomplete in some respect which is misleading (though not necessarily intentionally). Secondly, the true facts required to correct the error or omission must be clear and beyond legitimate dispute. The power of the court to prevent abuse of its process must be exercised in the light of the purpose of that process. In extradition cases it must have regard … to the scheme and purpose of the legislation. It is not therefore to be used as an indirect way of mounting a contentious challenge to the factual or evidential basis for the conduct alleged in the warrant, this being a matter for the requesting court. Third, the error or omission must be material to the operation of the statutory scheme. No doubt errors in some particulars (such as the identity or the offence charged) would by their nature be material. In other cases, the materiality of the error will depend on its impact on the decision whether or not to order extradition. The fourth observation follows from the third. In my view … the sole juridical basis for the inquiry into the accuracy of the particulars is the warrant is abuse of process. I do not think it goes to the validity of the warrant.”
[7]The particulars of the offence set out in the warrant are these, “On 13 November 2008, at the Shell petrol station in Bonyhad, Nikolics Laszlo took possession of a motor vehicle (registration number: IRH-O88) belonging to Palsecz Csaba, resident of Bieserd, on the condition that he will pay for it via periodical payments. However, Nikolics Laszlo has not made any payments, neither has he returned the car to its owner. The vehicle location is currently unknown. The damage caused is 800,000 HUF.” The value of the car in sterling terms was about £2400.[8]In February 2013 the Ministry of Public Administration and Law wrote a letter, directed in substance to an assurance that Hungary would abide by its international obligations in connection with the prosecution of the appellant. It also provided further details of the circumstances of the alleged offence. In that document, reference was made to the evidence of three witnesses to support the contention that the appellant unlawfully misappropriated the vehicle. The essence of the information provided was that the appellant had obtained the car using an intermediary, Zoltan Orsos, and then disappeared with it. The paragraph within that document upon which Mr Grandison particularly relies is this:
“There is no credible data or testimony indicating that Laszlo Nikolics did in person promise the owner of the car to pay the instalments on the car. It is because the car was taken over by Zoltan Orsos, who had been commissioned to do so by Laszlo Nikolics, and who alleged to have been in the belief that the issue of consideration had been settled or was going to be settled by Laszlo Nikolics.”
The document went on to explain that it appears that the appellant had no intention to pay for the car. A further document was provided on 29 March 2013 which set out in more detail the way in which the evidence in the case evolved. It confirmed that the owner was Csaba Palsecz. It described the involvement of two other witnesses in the process by which the appellant obtained the car and left without paying for it. The understanding was that he would pay, although there is no direct evidence relating to a promise to pay by instalments. The instalments complication appears to have arisen because the chain of people involved included another man, who was related to the owner. The car was given to him to sell in the expectation that he would secure payment, perhaps in instalments.[9]I confess to some difficulty in understanding the precise sequence of events set out in the two documents to which I have referred. They have been translated into English from the Hungarian but clearly by someone whose first language is not English. Mr Grandison objects that the warrant suggests a clear representation to pay for the car by instalments whereas the additional material does not rely upon that. I accept that he is right in that analysis but it does not seem to me that it makes any difference at all to the substance of the allegation against the appellant. It is that he took possession of a motor vehicle not belonging to him, to which he had no entitlement, in circumstances where he was expected to pay for it yet he had not done so because he had no intention of doing so.[10]Even if it is accepted that the suggestion in the warrant that he would pay for the vehicle “by periodical payments” is inaccurate I am unable to see how an abuse of process argument could successfully run. The words “via periodical payments” could simply have been left out of the warrant with no material impact on the nature of the alleged offence and no conceivable bearing upon whether the extradition of this appellant would be appropriate. By reference to the observations of Lord Sumption quoted above, this is not a case where the true facts are clear beyond legitimate dispute. The bare facts are clear – it is alleged that the appellant obtained the car by deception. But the precise sequence of events is confused. That confused factual picture which emerges from the warrant and the two subsequent documents is a matter for the requesting court and not this court. Critically, the alleged error or omission is not material to the operation of the statutory scheme for extradition. It could have no impact on the decision whether or not to order extradition. Section 13(b)[11]Section 13(b), as it applies to the circumstances of this case, can avail the appellant only if he establishes that he might be prejudiced at his trial or punished, detained or restricted in his personal liberty, by reason of his race, namely as a Roma Gypsy. The meaning of the word “might” in section 13(b) of the 2003 Act is the same as that determined by the House of Lords in Fernandezv. Government of Singapore and others [1971] 1 WLR 987 when interpreting section 4(1)(c) of the Fugitive Offenders Act 1967, which prohibited return of a fugitive if he “might” be detained or restricted in his personal liberty by reason of his political opinions. The House of Lords concluded that the word “might” does not mean “might” as a matter of mere possibility. It also rejected the contention that the word “might” suggested that the requested person should establish that the outcome was more likely than not. At page 994 Lord Diplock, with whom all members of the Committee agreed, put it in this way:
“I would not quarrel with the way the test was stated by the magistrate or with the alternative way in which it was expreressed by the Divisional Court.

(c) ”

[12]In Hilali v. Central Court of Criminal Proceedings number 5 and another [2006] EWHC 1239 Admin Scott Baker LJ applied the same standard of proof to a question arising under Section 13(b) of the 2003 Act (see para 62).[13]Miss Hinton submits that the conduct referred to in Section 13(b) would amount to treatment which violates either Article 5 or Article 6 of European Convention on Human Rights [“the Convention”]. Therefore, she submits that the same or very similar approach should apply to Section 13(b) as applies to questions arising under articles 5 and 6 of the Convention in removal cases. As Lord Bingham put it in R(Ullah) v. Special Adjudicator [2004] 2 AC 323 at para 24 “ [W]here reliance is placed on article 6 it must be shown that a person… risks suffering a flagrant denial of a fair trial in the receiving state…successful reliance on article 5 would have to meet no less an exacting test.” In Mamatkulov v Turkey (2005) 41 EHRR 494 the Strasbourg Court said that the word “flagrant” in the context of article 6 “…intended to convey a breach of the principles of a fair trial guaranteed by article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that article.” “…intended to convey a breach of the principles of a fair trial guaranteed by article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that article.”[14]I am unable to accept that submission. The direct application of questions of breaches of convention rights has only been open to the courts of England and Wales since the provisions of the Human Rights Act 1998 came into force in October 2000. The provisions of Section 13(b), whilst now overlapping with human rights arguments, have a different and longer history. The test to be applied is that of Lord Diplock in Fernandez without reference to the Convention jurisprudence.[15]In considering whether the evidence establishes the section 13(b) test there is an important background feature in cases involving category 1 territories, because they are members of the European Union and state parties to the Convention. There is an assumption that such states will vindicate the convention rights of those returned to them: see Gomez and Goodyear v. The Government of the Republic of Trinidad and Tobago [2009] 1 WLR 1038 at para 35; Krolik and others v. Several Judicial Authorities of Poland [2013] 1 WLR 490 at paras 3-7 and Rot v. District Court of Eubin Poland 2010 EWHC 1820 (Admin) at paras 10-11. However, in Agius v. Malta [2011] EWHC 759 (Admin) Sullivan LJ noted that the assumption that the state party to the ECHR would abide by its obligations was:
“capable of being rebutted by clear cogent evidence, which establishes that, in any particular case, extradition would not be compatible with the defendant’s convention rights.”
That approach, developed in the context of arguments under section 21 of the 2003 Act that extradition would violate convention rights, is no less appropriate when considering questions which arise under Section 13(b). Therefore, there is an assumption that the Hungarian judiciary will try the appellant fairly, not discriminate against him on grounds of his Roma race and not impose different custodial requirements, either on remand or following conviction, as a result. However that assumption is capable of being displaced by cogent evidence.[16]In his written decision, the District Judge identified the appropriate test by reference to the judgment of Scott Baker LJ in Hilali. He noted inflammatory and racist remarks attributed to prominent parliamentarians and referred to incidents of racist behaviour in Hungarian society. The evidence had included a description of a number of incidents in which the appellant and his family had been subject to racism in Hungary.[17]The District Judge referred to evidence given by Doctor Andras Kadar contained in two reports dated 21 January 2013 and 14 March 2013. Dr Kadar also gave oral evidence. The District Judge noted:
“Mr Kadar is an attorney of law practising in Hungary. He is also co-chair of the Hungary Helsinki Committee, a human rights watchdog NGO which focuses on access to justice, law enforcement issues and matters relating to non-discrimination. He has participated in several conferences dealing with discrimination and has written a number of articles on the topic.”
[18]The District Judge summarised Dr Kadar’s evidence which dealt with the statistical over representation of the Roma community in Hungarian prisons and their harsh treatment in the Hungarian criminal justice system. There was a suggestion that the presumption of innocence is not in fact applied to them in the same way as non-Roma defendants. Dr Kadar’s overall view was that the appellant’s fear of racial discrimination in the trial and in connection with detention was ‘not without reasonable ground’. The District Judge further referred to a number of human rights reports which dealt in general terms with the plight of Roma people within Hungarian society, rather than their treatment within the criminal justice system. There was also evidence before him from the Council of Europe and others expressing grave concerns about recent constitutional changes which undermined the rule of law.[19]The District Judge’s attention was drawn to the decision of Varga v. Hungary 2011 EWCH C318 (Admin) and Czako v. Hungary 2013 EWHC 316 (Admin). Varga was an appeal decided in February 2011 concerning a Roma requested by Hungary. The District Judge in that case had concluded that the test under section 13(b) was not made out. The District Judge heard evidence from a Professor Pap, which was specific about discrimination by the police but vague about discrimination in the courts. She also heard evidence from Doctor Nemeth-Bokor who explained that in her view there was no institutional discrimination in the courts system directed at Roma. She pointed out there were constitutional protections and appeal protections in the court system in Hungary. She expressed some exasperation at why it appeared the Republic of Hungary was being required to prove in every surrender case relating to someone of Roma ethnicity that he would be treated according to the law. Davis J concluded that the District Judge was fully entitled to come to the conclusion that she did. Czako was an appeal decided by Collins J on 31 January 2013. In that case there was evidence produced by the Hungarian judicial authority to the effect that the judiciary recognised the need to comply with the Convention to avoid any conduct which breaches the human rights of Roma. The evidence also dealt with the perceived interference with judicial independence by the new Hungarian government and the rise of far right groups. Those groups are anti-Semitic and anti-Roma. In paragraph 7 of his judgment Collins J said this:
“But this has to be set against the presumptions in favour of the judicial authority and its clear and dignified response, acknowledging the existence of extreme political views as part of a democratic society facing economic difficulties, but asserting compliance with all ECHR obligations and that the judiciary applied due process and nothing else.”
[20]District Judge Zani took these decisions into account, both in respect of the overall conclusions and also factual material reflected in the judgments. Having considered all the material and argument before him, the District Judge concluded that the appellant had failed, by some margin, to discharge the burden upon him under section 13(b).[21]The material relied upon by Mr Grandison in this appeal falls into two categories. First, there is the evidence dealing directly with the courts and the justice system, including that provided by Dr Kadar. Secondly, there is a large body of evidence dealing with profound concerns across Europe relating to constitutional changes being made by the Hungarian Government and outbreaks of virulent anti-Semitic and anti-Roma rhetoric from far right politicians, including some who appear to be members of the ruling party. In summary, what has been happening is this. The Government commands a two thirds majority in the Hungarian parliament. Constitutional changes can be made only with a two thirds majority. A number of ordinary laws were declared unconstitutional by the Constitutional Court. The response of the government was to re-enact the same or very similar measures as constitutional provisions. That has the effect of reversing the immediate decision of the Constitutional Court, but also of entrenching provisions which are regarded as controversial. Legislation was also passed to change the makeup of the Constitutional Court and reduce the retirement age of serving judges. That has given rise to real concern amongst the organs of the European Union and the Council of Europe that the rule of law and judicial independence are being undermined in Hungary. The material suggests that not enough is being done to tackle the obscene rise in racist activity. Mr Grandison recognises that the appellant cannot rely directly upon general anti-Roma sentiment in parts of Hungarian society to support the proposition that if returned to face trial in Hungary he might suffer discrimination at the hands of the Hungarian judiciary. But he submits that the strength of the anti-Roma background material is at least relevant because it suggests that racism of this nature is once again becoming respectable, or at least unremarkable in Hungary. The new evidence introduced into this appeal deals with recent political developments in Hungary and the reaction of the European organs to those developments.[22]The material upon which the appellant relies in support of the proposition that he might suffer discrimination at the hands of the Hungarian judiciary is found within Dr Kadar’s report and a report of the Special Rapporteur for the Human Rights Council of the General Assembly of the United Nations. It is dated 23 April 2012 and followed a visit to Hungary in 2011. The Special Rapporteur’s report was before the District Judge, albeit not expressly referred to in the decision.[23]Dr Kadar stated that it is well documented that Roma are statistically over represented in Hungarian prisons. The research to which he referred was carried out in the mid-nineties. Research carried out in 2000 – 2001, by questioning convicts about their ethnic origin, confirmed the position. A similar recent survey in 2012 re-confirmed it. Dr Kadar recognised that the fact that a particular ethnic group is over represented in the prison population does not explain why, and says nothing about whether it reflects bias in the criminal justice system at the judicial level. However, limited research into case files in both 2000 and 2003 suggested that the defendant’s Roma ethnicity was referred to by witnesses in many of their statements. Those who could be identified as Roma defendants were more likely to have been taken into pre-trial detention, their pre-trial detention was longer than those thought to be non-Roma and the sentences imposed upon them for robbery (that being the sample group) were longer. Dr Kadar identified four criminal cases (one from 1994, one from 1999 and two from 2009) which in his opinion resulted in miscarriages of justice for Roma defendants. His overall conclusion was that whilst he could not say that Roma defendants were, as a rule, treated more harshly than others in the Hungarian criminal justice system, or that the presumption of innocence was not applied to them, the appellant’s fear that such things might happen was “not without any reasonable ground”[24]Dr Kadar also explained that there are strict data protection laws in Hungary that prevent the collection of statistical data based upon ethnicity of the sort that has become common place in the United Kingdom. As is well known, statistics available relating to the ethnic makeup of prisoners in the United Kingdom demonstrate that a number of ethnic minorities are substantially over represented (including Roma) as compared with their representation in the population at large - see, for example, Prison: the facts Bromley Briefings Summer 2013, Prison Reform Trust page 5. The intense work done in this jurisdiction in recent decades to establish the causes of that disparity and, so far as practicable to exclude conscious or unconscious bias from the criminal justice system, has not been replicated in Hungary, not least because the necessary statistical information is not collected.[25]In considering the weight to be attached to Dr Kadar’s evidence and opinion a number of factors fall to be considered. His expertise and good faith are not in question. Nor is his experience as a lawyer in Hungary and his interest in discrimination law in doubt. Yet his professional experience set out in the introduction to his report itself speaks of the efforts being made to deal with discrimination in Hungary. He explains that he litigates discrimination cases before the courts and Hungary’s equality body, the Equal Treatment Authority. That confirms, as is common ground, that such discrimination is unlawful in Hungary and that opportunities exist within the legal system to remedy unlawful discrimination. He explains that he was involved in drafting Hungary’s anti-discrimination code in 2003 and that he has represented Hungary on various pan-European bodies concerned with racism and fundamental rights. He also served on the Equal Treatment Advisory Board. That provides analysis and advice to Hungary’s equality body. He serves on the Independent Police Complaints Board and is a member of the Civilian Advisory Board of the Commissioner for Fundamental Rights, Hungary’s ombudsman. The 2003 date is of significance. Hungary joined the European Union in 2004. It had become a state party to the Convention in 1992. Dr Kadar’s report demonstrates that there is wide range of bodies in Hungary whose task is to combat discrimination against Roma.[26]The Special Rapporteur visited Hungary at the invitation of the Hungarian government. He was concerned with issues relating to all ethnic and national minorities and the way in which they were treated. A section of his report deals with the situation of the Roma minority. He recognises the key measures adopted by the government to combat discrimination but then identifies “remaining challenges” including “structural and institutionalised discrimination”. Paragraph 36 of the report is in these terms:
“The Special Rapporteur was particularly alarmed to hear from several interlocutors that racism against Roma prevails not only in the mindsets of the general public but also within public institutions, including the police and the judiciary. During a meeting held with the Ministry of Interior the Special Rapporteur was informed about initiatives developed both by the Police and the Ministry related inter alia to the recruitment of Roma to the police, racial prejudices, racially motivated crime, and “multicultural conflicts”
. While such steps are welcome, the Special Rapporteur is very concerned at reports received during the mission about the persistence of racial profiling against the Roma by the police; cases of police officers refusing to record Roma complaints and regularly abusing them verbally and physically; and disproportionate fines imposed by the police on Roma on a regular basis in breach of the law. Some interlocutors, including Roma Victims themselves, also indicated that investigations of racist crime against Roma have been limited. Discriminatory behaviour by the police must stop, and Hungary must take concrete measures to end impunity for police misconduct. Furthermore, while discussing the judiciary with several interlocutors, including Roma individuals, the Special Rapporteur was told that Roma continue to experience racial discrimination and strong racial prejudice from within the judiciary, including from judges. It was reported that the situation is of particular concern in the criminal justice system. For instance, cases of Roma being sentenced more severely by the Courts were highlighted.”[27]In the conclusion to the report the Special Rapporteur again mentioned that:
“Racial discrimination, racism and negative stereo types against the Roma minority within state institutions including the police and the judiciary, is a reality that Hungary should not deny.”
[28]In May 2012 the Hungarian government commented upon the report of the Special Rapporteur. It provided detailed information about steps being taken to improve the lot of Roma in many fields. The government did not, however, comment on the suggestion that there was discrimination within the judiciary against Roma or the fact that the Special Rapporteur had been told that Roma received disproportionally longer sentences compared with others. Mr Grandison relies upon the absence of any detailed response on this topic as telling, although the appellant’s own case is that statistics have not been collected in Hungary that would illuminate the issue. It is fair to say that the response identifies no particular concern of the Hungarian government to collect the necessary statistics or otherwise establish the facts. The report of the Special Rapporteur is important in dealing with a wide range of issues of concern in Hungary affecting Roma and other minorities. It is striking, however, that the reference to the judiciary in the extract quoted above is unsupported by any particulars, still less is any indication given of how widespread the Special Rapporteur perceived the problems within the judiciary to be.[29]Dr Kadar explains that Hungary has a judicial system where minor offences are tried by a single judge and more serious offences tried by a panel of three judges. His own evidence dealing with disproportionate sentencing and pre-trial detention relates to periods before Hungary joined the European Union and before all the work he has been involved in since 2003 was done in Hungary. The third of the miscarriage of justice cases referred to by Dr Kadar (the Cozma case) illuminates the current position. The original sentence imposed in June 2011 upon a gang which included some Roma was reduced on appeal. The appeal court also dealt with an issue which arose as result of the way in which the first instance court had expressed itself in its judgment. It repeatedly referred to the defendants as “gypsies”. The appeal court concluded that the references to the defendants’ ethnic origin was unnecessary and required them to be deleted from the judgment. It concluded that:
“The use of the said references is inappropriate, because it can create the appearance that the court is not impartial and adjudicated the case in a biased manner.”
[30]The fourth example of a miscarriage of justice cited by Dr Kadar (the Miskolck case) has an appeal pending.[31]I have referred to the two letters sent by the Hungarian authorities which provided information in connection with this case. They identified aspects of the Fundamental Law of Hungary which guarantee that every person shall be equal before the law and that the Hungarian state must ensure fundamental rights to every person without discrimination on grounds of race. They added:
“Hungary is a democratic state, whose legal system and judicial procedures fully and comprehensively secure the protection of human rights and their enforcement. Accordingly, Hungary participates in all universal and regional, European international conventions protecting human rights. As since 1 May 2004 Hungary is a member of the European Union which means that its legal system and the operation of its administrative organs fully comply with those very strict requirements which were worked out by the European Union to be observed by its member states in respect of the rule of law and the protection of human rights. A fundamental requirement of the rule of law is that judges determine the cases brought before them independently. It means that judges proceeding in a case are bound exclusively by the law. Their judgments are not influenced by newspaper articles or opinion of public figures, but only by facts established at the trial in the course of the proceedings. The manifestation of extreme views in the society, are a side-effect of democracy, as in all other democratic states, but the touchstone of a democracy is that those extreme views shall not prevail in practice.”
This is an echo of the dignified response from the judicial authorities referred to by Collin J in Czako.[32]This response was directed towards the material produced by the appellant before the District Judge relating to the extreme views within society and criticism of the judiciary.[33]The question for this court is whether the conclusion of the District Judge on the evidence before him was wrong, when the new evidence is also taken into account. I have summarised in some detail the evidence Dr Kadar and the Special Rapporteur which provides the fundamental criticism of the judiciary in Hungary of central relevance to this appeal. It must be recognised that Dr Kadar’s conclusion was tentative as regards the discrimination that the appellant might suffer from the judiciary on return to Hungary. Most of the material upon which he relied to explain his concerns for Roma in the Hungarian criminal courts was old and far from robust. The details of the recent “miscarriage of justice cases” demonstrate the strength of the appellate system in Hungary and manifest within the judiciary itself a desire to stamp out bias against the Roma. The broad constellation of organisations which Dr Kadar indentified in the introduction to his report shows that much is being done in Hungary to deal with discrimination against Roma. The Special Rapporteur, whose report covers a great deal of ground, speaks only glancingly about the judiciary and is lacking in specificity. I recognise that the material raises genuine concerns about the treatment of Roma in the Hungarian criminal justice system. But I am satisfied that the evidence does not demonstrate a “serious possibility” or “substantial grounds for thinking” that the circumstances contemplated by section 13(b) of the 2003 Act might come to pass. The District Judge was entitled to conclude that the material relied upon provided an inadequate foundation to succeed in a section 13(b) argument. That was especially so when the following features are taken into account:- i) the presumption that the Hungarian judicial authorities will secure to the appellant his fundamental rights, which include the right not to be discriminated against on account of his race in legal proceedings; ii) The assurances provided by the Hungarian authorites in their two letters; iii) The information contained in the two administrative court judgments to which to the District Judge referred; iv) the fact, as is common ground, that the appellant can rely upon his right to a fair trial without discrimination before the Hungarian courts and his ability to appeal adverse decisions including on those grounds.[34]I have noted that Hungary became a state party to the Convention in 1992. No decision of the Strasbourg court relating to the position of Roma in the Hungarian justice system was referred to in the course of argument. Counsel’s researches did not discover a successful application to the Strasburg court founded upon a suggestion that Roma are discriminated by the judiciary. That contrasts, for example, with well known cases dealing with discrimination against Roma in Hungary in the context of education. The absence of such cases to my mind provides further support for the conclusion that there are no substantial grounds for thinking that the appellant might suffer discrimination of the sort he fears.[35]In those circumstances, the second ground of appeal, like the first fails and the appeal must be dismissed.

Cited in 2 later judgments