Horvath v Hungary [2015] EWHC 3018 (Admin)

Case No CO/3252/2014

[2015] EWHC 3018 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Wednesday, 8 July 2015

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE AIKENS

MR JUSTICE OUSELEY

Between

HORVATHClaimant

Between

HUNGARYDefendant

(Transcript of the Handed Down Judgment of

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Mr J Knowles QC and Miss M Westcott (instructed by Dalton Homes Gray) appeared for Claimant

Mr M Summers QC and Mr N Hearn (instructed by the Crown Prosecution Service) appeared for Defendant

Judgment

LORD JUSTICE AIKENS:

This

[1]is an appeal from the decision of District Judge Zani ("the DJ") of 8 July 2014, ordering the extradition of Andras Horvath ("the appellant") to Hungary pursuant to section 21(3) of the Extradition Act 2003 ("the EA"). The extradition of the appellant had been requested by the Municipal Court of Szombathely, Hungary, pursuant to what is commonly known as an "accusation" European Arrest Warrant ("EAW") issued by the Judicial Authority ("JA") on 13 January 2011. On 8 October 2013, the National Crime Agency of the UK certified the EAW under section 2(7) of the EA. On 16 October 2013, the appellant was arrested in the UK. The Facts

[2]The appellant was born on 12 July 1965. His surrender is sought by the JA so that he may stand trial in relation to eight offences. The first is an offence of "felony theft" of a laptop computer, printer and microwave, whose joint value is about £270. These items belonged to the appellant's then partner and were allegedly stolen from the flat they shared in Szombathely in February 2010. That offence is punishable with up to three years' imprisonment.

[3]Next there are allegations of four offences of "felony of embezzlement" and one offence of "misdemeanour of embezzlement" concerning the alleged unlawful disposal of freezers, fridges, digital scales and a hot chocolate maker belonging to a school. The joint value of these items is said to be about £450. The offences are alleged to have occurred in January 2010 in Szombathely. Each offence is punishable with up to three years' imprisonment.

[4]Next there is an allegation of one offence of "misdemeanour harassment" of the appellant's ex-wife, Ms Poor, on 79 occasions. It is said that he made several threats to kill her in May 2010. This offence is punishable with up to two years' imprisonment.

[5]Lastly, there are two allegations of "misdemeanour vandalism", which is effectively criminal damage. These are said to be offences of damage to door locks of the appellant's ex-wife's flat and of a hospital workplace in Szombathely on two occasions in May 2010. Those offences are punishable with up to one year's imprisonment. The Extradition Proceedings

[6]Hungary is, of course, an EU member state and has been designated a category one territory pursuant to section 1 of the EA. Therefore part 1 of the EA applies both to the extradition hearing and to this appeal.

[7]Two grounds of opposition to the appellant's extradition were raised by him before the district judge. First, it was argued that the prison conditions in Hungary were so overcrowded and unsatisfactory that there were substantial grounds for concluding that there would be a real risk that extradition would be contrary to the appellant's rights under

Article 3 of the European Convention on Human Rights

("ECHR") not to be subjected to inhuman or degrading treatment or punishment. Secondly, it was argued that extradition would be in breach of the appellant's rights in respect of his family life, contrary to

Article 8 of the ECHR

[8]The extradition hearing took place on 9 May 2014 before the DJ. There were various reports before the DJ in connection with the conditions in Hungarian prisons, and also information from the Hungarian JA. The court heard live evidence from the appellant in relation to Article 8 matters and live evidence via video link from Dr Kadar, a practising Hungarian attorney, in relation to Article 3 matters concerning prison conditions. The DJ rejected both grounds of opposition.

[9]The position in relation to each of the grounds advanced by the appellant has changed since the ruling of the DJ. The most important changes relate to the Article 3 grounds of opposition and I will deal with those first. The parties' arguments on Article 3

[10]Mr Mark Summers QC, who appears with Mr Nicholas Hearn on behalf of the Judicial Authority, accepts that the position with regard to prison conditions has changed fundamentally as a result of the decision of the second section of the European Court of Human Rights in its Pilot Judgment in Varga and Others v Hungary issued on 10 March 2015. The Pilot Judgment procedure of the European Court of Human Rights ("ECtHR") was briefly described in the judgment of this court in Elashmawy v Italy

[2015] EWHC 28 (Admin)

at paragraph 52. In short, the Pilot Judgment procedure, codified in the new rule 61 of 2011, is to deal with situations: "Where the facts of an application reveal in the contracting party concerned the existence of a structural or systemic problem or other similar dysfunction which has given or may give rise to similar applications." (See rule 61(1))

[11]Rule 61(3) stipulates that if the ECtHR decides to adopt the Pilot Judgment procedure in a particular case, then in that Pilot Judgment, the court must "identify both the nature of the structural or systemic problem or other dysfunction as established" and it must also identify "the type of remedial measures which the contracting party concerned is required to take at the domestic level" as a result of the judgment.

[12]In its judgment in the Varga case, the ECtHR concluded that there was an endemic problem of prison overcrowding in Hungarian prison institutions and that there were also other endemic problems concerning sanitation, sleeping conditions, ventilation and exercise facilities. The result was that the ECtHR regarded the conditions of the prisons in which the various detainees who had brought proceedings were held, amounted to breaches of

Article 3 of the ECHR

; see paragraphs 79 to 92 of the Varga judgment. The court gave Hungary six months to produce a "time frame" for reforms.

[13]Mr Summers informed the court in a supplementary submission on behalf of Hungary that Hungary had carefully considered the content of the Pilot Judgment in the Varga case and acknowledged that the position previously adopted on behalf of Hungary, which was that the collected evidence did not demonstrate that conditions crossed the Article 3 threshold, could not now be maintained. In the light of Varga, it was accepted on behalf of Hungary that male Hungarian prison conditions crossed the Article 3 threshold for the purposes of these proceedings.

[14]Mr Summers therefore accepted that the appellant was in the position of having produced evidence capable of showing "substantial grounds for believing" that he faced a "real risk" of exposure to a prospective violation of

Article 3 of the ECHR

. The consequence was, as Mr Summers accepted, that the burden then shifted to the Judicial Authority "to dispel any doubts about it"; see the decision of the ECtHR in Saadi v Italy

[2009] 49 EHRR 30

at paragraph 129.

[15]Mr Summers therefore also accepted that, in the context of the present case, the burden could only be discharged by the JA if it took one of two courses. First, it could do so by adducing concrete evidence that the situation had improved so as to reach an Article 3 compliant level, as had happened in the case of Italy in the case of Elashmawy; see paragraph 69 of the judgment of the court in that case. Alternatively, the JA could produce case specific assurances that there would be Article 3 compliant treatment of the requested person when extradited; see in that respect the position adopted by Romania in Florea v Romania

[2014] EWHC 2528 (Admin)

and

[2014] EWHC 4367 (Admin)

[16]In these proceedings, the position of Hungary is that it is not in a position to adduce concrete evidence that the situation has improved so as to reach an Article 3 compliant level across the prison estate. Accordingly, the course that Hungary has taken is that of attempting to provide case specific assurances. In the submission of Mr Summers, Hungary has provided assurances that the appellant will be detained both pre and post trial (if convicted) in a specific prison, namely Szombathely prison, in which he will personally be guaranteed at least three square metres of personal space. There are several documents containing what Mr Summers says are assurances which are, to use a shorthand term, "Othman compliant". That is a reference to the case of Othman v United Kingdom

[2012] 55 EHRR 1

at paragraphs 188 and 189.

[17]The documents are as follows: first, there is an assurance from the Deputy Head Prosecutor of Hungary dated 13 May 2015. This states that any pre-trial detention ordered by the Hungarian court in respect of the offences specified in the EAW "shall be executed in the national penitentiary institute of Szombathely" and that the prosecutor, having the "power of disposition", will not order transfer from that prison. Secondly, there is a document from the national headquarters of the prison service dated 15 May 2015, providing information about the Szombathely prison. This gives specifications of the cell dimensions and other information about prison facilities. Thirdly, there is a letter from the Ministry of Justice of Hungary dated 15 May 2015, which encloses the two documents I have just described, and further guarantees that the appellant "shall be incarcerated in ... Szombathely during the criminal proceedings". The document also further guarantees that the appellant "shall have at least three square metres of personal space in Szombathely".

[18]The first of these documents referred, as I have indicated, only to "pre-trial detention". Despite the fact that the third of these documents referred to detention in Szombathely prison "during the criminal proceedings", it was thought wise that there should be some confirmation of the position so that it included post conviction detention as well as pre-trial detention. That was done, so Mr Summers submits, in a fourth document, which was in the form of a further "binding assurance" from the Ministry of Justice in conjunction with the national headquarters of the prison service in a letter dated 19 May 2015. This stated that:

"During any period of detention for the offences specified in the EAW, the appellant would be detained in conditions that guarantee at least three square metres of personal space and that he would at all times be accommodated in a cell in which he would personally be provided with the guaranteed personal space."

[19]On 6 July 2015, the appellant counsel, Mr Julian Knowles QC and Miss Mary Westcott, submitted additional written submissions to the court on the terms of these assurances. They took the point that it was not clear that the assurances specifically guaranteed to the appellant that he would be detained post conviction at Szombathely prison. It was submitted that the assurance in relation to post trial detention was more general, and was one that only guaranteed personal space of three metres, and that that assurance was insufficiently specific to be Othman compliant.

[20]The Hungarian Ministry of Justice Department of International Criminal Law sent a letter to the NCA in London dated 6 July 2015. The letter was signed by Mr Tunde Forman, who had also signed the letter of 15 May 2015. The first two paragraphs of this letter of 6 July states:

"The Ministry of Justice of Hungary -- acting as Central Authority -- presents its compliments to the National Crime Agency and referring to the surrender proceedings conducted against Andras Horvath, has the honour to send you the following information: For the avoidance of doubt, we confirm that the undertaking provided in relation to Andras Horvath is that he will be detained in Szombathely prison throughout all proceedings in Hungary, both pre-trial and, after any conviction, for the duration of any sentences imposed listed in the EAW."

[21]It is well established that once it is accepted in an extradition case by the court that there is cogent evidence that a breach of Article 3 is a "real risk" in relation to prison conditions, the burden shifts to the requesting estate to "dispel the doubts" by, for example, providing satisfactory case specific Othman compliant assurances.

[22]Mr Knowles submits today that this court cannot be satisfied that the assurances given by the Hungarian authorities in relation to any post trial detention of the appellant satisfy this test. He submits that it is clear that in the May assurances from the prison authority of Hungary, there is no reference to Szombathely prison specifically and that this lack of specificity is not satisfactorily remedied by the letter of 6 July, which is itself not from the prison authority which deals with these matters, but from the Ministry of Justice Acting only as a "Central Authority". Mr Knowles reminds us that the words "Central Authority" come from the Framework Decision of 2002 setting up the EAW system, and that the words connote an authority in a participating state which coordinates judicial authorities within that state. Mr Knowles also points to the fact that the appellant, if convicted, is likely to have a prison sentence of some years imposed on him, so that an assurance of a specific prison is essential if there is to be no real risk of him being subjected to prison conditions that are not Article 3 compliant. Conclusion on Article 3

[23]I cannot accept the submissions of Mr Knowles. The assurance of 15 May 2015 from the national headquarters of the prison service did indeed refer only to pre-trial detention. The letter from the Ministry of Justice of 19 May 2015 gives an assurance from both the Ministry of Justice and the national headquarters of the Hungarian prison service which, as the letter says, has jurisdiction in Hungary to provide this "binding assurance". This letter of 19 May gives an assurance that relates to all periods of detention and guarantees of at least three square metres of personal space. In fact, as the appellant's expert on prison conditions, Dr Kadar, states in his complementary opinion indicated 17 June, which was produced following the May assurance letters, effectively the only institution in Hungary which can comply with the three square metre guarantee, so far as this appellant is concerned, is Szombathely prison. That is clear from his answer to question E of his supplementary opinion, which are as follows:

"E. Without doubting the good faith of the undertaking regarding three square metres, are there any reason to think that from time to time it will not be possible to keep it? Answer: if the regulation concerning the Szombathely prison remains as it is today, there is a high likelihood that the undertaking can be kept."

[24]The letter of 6 July 2015 is, therefore, simply a clarification of the existing position, not a new undertaking by Hungary. In any event, I have no doubt that the Ministry of Justice Of Hungary has the authority to bind the national prison services so that this assurance will be honoured.

[25]Mr Knowles submitted that there must be some doubt. That, to my mind, was getting very close to alleging bad faith, although Mr Knowles insisted that he did not challenge the good faith of the Hungarian authorities. I would repeat what I said in the judgment of the court in the case of Ilia v Greece

[2015] EWHC 547 (Admin)

at paragraph 40 in relation to the Othman requirement that compliance with an assurance can be objectively verified. I said:

"It is important also to recall that we are dealing with cases in which the assurance will have been given by the JA or a responsible minister or responsible senior official of a government department of a Council of Europe or EU state. In our view there must be a presumption that an assurance given by a responsible minister or a responsible senior official of a Council of Europe or EU state will be complied with unless there is cogent evidence to the contrary."

I then referred to CJEU case law and the Framework Decision preamble and comments which are similar in nature.

[26]In my judgment, that is the position we must adopt in this case. I am therefore satisfied that these assurances do "dispel the doubts" to the required degree. Accordingly in the case of the appellant, I am satisfied that there are not now substantial grounds for concluding that there is a real risk that if extradited he would be subject to degrading treatment in breach of Article 3 by reason of prison conditions.

[27]I would therefore reject this ground of appeal. Article 8: argument and conclusion

[28]In relation to the Article 8 ground, Mr Knowles makes two submissions. First, he submits that the DJ adopted the wrong legal test. Secondly, he submits that the DJ did not properly assess the facts that were before him, and in any event the factual position has changed since the extradition hearing. In that regard, Mr Knowles wished to rely on further statements made by the appellant. Mr Summers did not object to those statements being adduced in evidence on this appeal.

[29]When the DJ dealt with the Article 8 ground of objection to extradition, he referred to the leading case of Norris v the USA (2)

[2010] 2 AC 487

. At paragraph 32 of his ruling, the DJ summarised the effect of the Supreme Court's judgment in that case as follows:

"[The judgments] made clear that the requested person would have to demonstrate that the impact of extradition went beyond the normal and often unfortunate consequences of extradition. The threshold is set high and there would have to be 'striking and unusual' facts for such a challenge to succeed."

Mr Knowles submits that the DJ therefore adopted a legal test that the requested person had to show that there were "striking and unusual facts" before the Article 8 challenge could succeed, and that that was as a matter of law a wrong test.

[30]In his ruling, the DJ then reviewed the facts of the case. At paragraph 36 of his ruling, he refers to the fact that the appellant's ex-wife, Ms Poor, no longer wished to pursue any complaint against the appellant. The DJ refers to the appellant's subsequent relationship with Ms Mate and the fact that the appellant has six children by three relationships, of which two are now adults and the remaining four are aged ten to one. The DJ also refers to the fact that the appellant is currently in a relationship with another Hungarian lady in the United Kingdom and that they are engaged. The DJ refers to the fact that the appellant is in employment at present, earns about £1,100 per calendar month and that "he tries to send monies abroad as and when he can so as to provide some financial support for his younger children", a point he refers to again at paragraph 41 of his reasons. The DJ concluded that the facts of the appellant's challenge fell:

" ... woefully short of satisfying the necessary test to demonstrate that it would be Article 8 disproportionate for this court to order his return and is therefore bound to fail."

[31]Mr Knowles submits that this summary does not vitiate the use of the wrong legal test by the DJ in paragraph 32 of his reasons, to which I have referred. On the facts, Mr Knowles referred us to the evidence that was before the DJ that Ms Mate and Ms Rajos, to whom the appellant had sold the goods which were the subject of the four counts of "felony of embezzlement" referred to in box (e) of the EAW, had now received compensation from the appellant's ex-wife, Ms Poor. A declaration of 25 April 2014 by Ms Mate and Ms Rajos states that as a result of receiving this compensation, they had no claim on the appellant and so do not want him made "legally accountable for his actions against us or to be charged". Mr Knowles submits that the DJ did not appear to take account of this declaration in considering the Article 8 factors.

[32]Mr Knowles also drew our attention to the statement of Ms Poor dated 16 May 2014, to the effect that she was planning to withdraw her statement against the appellant in relation to the harassment allegations because she and the appellant had now repaired their relationship since being divorced. Indeed, Ms Poor refers to the fact that they have had a further child together. Ms Poor's statement also indicates that the appellant constantly sought information about their children, and "when he has the means" he contributed to their upbringing. Those factors were, of course, considered by the DJ.

[33]Mr Knowles drew our attention to the further statements of the appellant to the effect that his fiancée has medical problems and that extradition would have an adverse effect on her. The statements also refer to the deteriorating medical condition of the appellant's mother, who is now aged 81 and is suffering from stomach cancer. Mr Knowles referred us to the decision of this court in Polish Judicial Authorities v Celinski and Others

[2015] EWHC 1274 (Admin)

in which the Lord Chief Justice, in giving the judgment of a three man divisional court, considered the principles upon which the appropriate judge, and this court on appeal, should approach an Article 8 ground of objection to extradition. The Lord Chief Justice reiterated the general principles set out by the Supreme Court in the Norris case and in HH v Deputy Prosecutor of the Italian Republic, Genoa

[2013] 1 AC 338

. The Lord Chief Justice stated that the judge at first instance had to set out the "pros" and "cons" in a "balance sheet" and then set out his conclusions on them; see paragraph 16 of the Lord Chief Justice's judgment.

[34]On appeal, the approach is one of review. The single test to be applied overall is whether the DJ "made the wrong decision"; see paragraph 24 of the Lord Chief Justice's judgment. There could be several reasons why the decision was wrong, but ultimately the question the court has to ask is as described, and the emphasis must be on the outcome viz the decision itself.

[35]In this case, was the DJ's decision wrong? I have concluded that it was quite correct. The EAW identifies eight charges for which the extradition of the appellant is requested. I accept that they range in seriousness, but taken overall, they are far from trivial. The fact that Ms Mate and Ms Rajos have received compensation in respect of the felony of embezzlement charges does not assist the appellant much. They were the purchasers of goods which, effectively, the appellant is accused of either stealing or handling as stolen goods. The charges are still extant or else they would have had to have been removed from the EAW. Ms Poor may have wished to drop allegations against the appellant, but as her statement makes clear, she cannot do so as a matter of Hungarian law. Those charges are also extant. They are serious. The offences did occur some time ago, but they remain sufficiently serious in my view to warrant the charges and the EAW. The appellant does help his minor children when he can, but this is not a case where they are financially dependent upon him. I accept that extradition will have an effect on the relationship of the appellant with his current partner, and that extradition will affect her adversely. I also accept that there may be adverse consequences for the appellant's mother if there is extradition.

[36]Taking all these factors into account, however, in my view they do not make a decision to extradite a disproportionate interference with the appellant's Article 8 rights. The public interest in extradition is very strong. The countervailing factors here do not overcome that strong factor. The judge made the right balance and his decision was correct.

[37]Accordingly, I would dismiss the appeal.

MR JUSTICE OUSELEY: I agree.

[39]MR SUMMERS: My Lord, may I raise one point of clarification. At one stage my Lord said, when dealing with the 19 May assurance, that the only prison capable of offering three square metres in Hungary was Szombathely. In fact there's at least one, and probably two, other prisons in Hungary that are.

LORD JUSTICE AIKENS: Well I think I said that that was the conclusion I draw from what Dr Kadar had said.

[41]MR SUMMERS: Absolutely, but so far as the facts are concerned and the evidence, there is at least one and possibly another prison, and the clarification is important for this reason: because going forward, the intention of Hungary, as Romania did in the case of Blaj, having shown in this case itself capable of assuring three square metres, is to provide a standing assurance applicable to all cases going forward, offering three square metres but leaving Hungary the freedom to select which of those three prisons it places each individual prisoner in, and it's important that nothing in this judgment implies that Szombathely is the only prison in Hungary capable of performing that function.

LORD JUSTICE AIKENS: Well this is all being transcribed and I will make sure that there isn't a form of words which might imply that in respect of others it could only be Szombathely prison.

[43]MR SUMMERS: My Lord, I'm grateful.

LORD JUSTICE AIKENS: I think I have seen, I can't remember in what context, but I have seen a further assurance in relation to 33 identified individuals.

[45]MR SUMMERS: My Lord yes, that's the standing assurance, and it may need to be litigated in this court, but it would be unfortunate if --

LORD JUSTICE AIKENS: No, I understand that, and I will make sure that there is proper clarification.

[47]MR SUMMERS: My Lord, if it assists, the point that my Lord was making is not detracted by this, the point that my Lord was making was that it could be inferred from the 19 May assurance that the three square metres was a reference to Szombathely. Given the prior references to Szombathely in that document, the inference would still follow.

LORD JUSTICE AIKENS: Right. Well thank you very much for that assistance.

[49]MR SUMMERS: Thank you, my Lord.

LORD JUSTICE AIKENS: Anything else?

[51]MR SUMMERS: No, my Lord.

LORD JUSTICE AIKENS: Would you counsel please between you, or your juniors, perhaps, just draw up a form of order so that the court has it. It is important that the form of order is right. I had a most unfortunate case last week where counsel carefully drew up a form of order. Unfortunately that was not the form of order that was given to the prison authorities, and the associate drew up some other form of order which was not in accordance with that agreed by counsel and indeed read out by me in court when I handed down the judgment, and it's had unfortunate repercussions. So it's important we get it right, so if your juniors could, and make sure it gets to me via my clerk, I will initial it and make sure that that is what goes out.

[53]MR KNOWLES: We'll have that done this afternoon, my Lord. Could I just ask for a legal aid assessment.

LORD JUSTICE AIKENS: Yes, of course. That will be in the usual form of that order.

[55]MR KNOWLES: Thank you, my Lord.