Attila Fuzesi v Budapest-Capital Regional Court, Hungary
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh |
| Judgment Date | 16 July 2018 |
| Neutral Citation | [2018] EWHC 1885 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4291/2017 |
| Date | 16 July 2018 |
[2018] EWHC 1885 (Admin)
Lord Justice Singh
Mrs Justice Carr
CO/4291/2017
CO/5227/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
APPEARANCES
Mr M Summers QC and Ms N Draycott (instructed by Lawrence & Co) appeared on behalf of the First Appellant.
Mr M Summers QC and Mr J Swain (instructed by Oracle Solicitors) appeared on behalf of the Second Appellant.
Mr J Hines QC and Ms A Bostock (instructed by the Crown Prosecution Service) appeared on behalf of the Respondents.
Hearing date: 13 July 2018
Introduction
This is the judgment of the court to which both of its members have contributed. We have been assisted by both written and oral submissions from Mr Mark Summers QC (leading Ms Natasha Draycott for the first appellant, and Mr John Swain for the second appellant) and from Mr James Hines QC (leading Ms Amanda Bostock) for the respondents. We are grateful to them all.
There are before the court two appeals against extradition which was ordered by the magistrates' court. Initially, both cases concerned a single common issue, namely whether prison conditions in Hungary are such that there would be a real risk of a breach of Article 3 of the European Convention on Human Rights (“ECHR”) on the basis of overcrowding should the appellants be extradited to Hungary. However, as will become apparent, that issue has fallen away in the case of the second appellant. In his case, there have been recent developments which led to an application to adjourn final consideration of his appeal and/or an application for permission to amend his grounds of appeal. We will return later to those applications.
The first appellant's extradition was ordered by District Judge Lucie on 15 September 2017. The second appellant's extradition was ordered by District Judge Ashworth on 6 November 2017. On 21 December 2017, Ouseley J granted permission to appeal on the Article 3 ground alone. On 15 May 2018, the respondents conceded that there was a real risk of an Article 3 breach. On 16 May 2018, Sharp LJ adjourned the hearing which was then due to take place on 24 May.
Further assurances have now been given by the respondents. The first assurance, dated 23 May 2018, so far as material reads:
“The Ministry of Justice of Hungary and the National Headquarters of the Hungarian Prison Service, which has jurisdiction in Hungary to provide this binding assurance, guarantees that [the first appellant] will […] during any period of detention for the offences specified in the European arrest warrant, be detained in conditions that guarantee at least 3 square metres of personal space. [The first appellant] will at all times be accommodated in a cell in which he will personally be provided with a guaranteed personal space.
As of 1 January 2015, Hungary has signed, ratified and implemented the Optional Protocol to the UN Convention against Torture (OPCAT) and has set up The General Ombudsman as its National Preventative Mechanism. Accordingly, the General Ombudsman will monitor compliance with this assurance.”
The second of the assurances was dated 28 May 2018 and related to the second appellant. It is unnecessary for present purposes to recite it in any detail. The reason why there had to be more than one recent assurance given is that the first assurance of 28 May only dealt with the European arrest warrant which bore the reference Szv.2301/2012. The second assurance, to which I will return in a moment, dated 14 June 2018, dealt with both the European arrest warrant with the reference Szv.2301/2012 (the 14-count theft-, fraud- and bankruptcy-related one, which, as we shall see in a moment, is said to be limitation barred) and the one that bore the reference Szv.1231/2015 (the 26-count burglary-related one).
The assurance of 14 June 2018 is in material terms identical to the one we have already recited in the case of the first appellant, save that it specifies that the second appellant “will be detained in the Szombathely National Prison where the detention conditions are CPT compliant”. That acronym appears to be a reference to the Committee for the Prevention of Torture, a European body under the auspices of the Council of Europe which is charged with responsibility for (amongst other things) inspecting premises to ensure compliance with the prohibition on torture and inhuman and degrading treatment.
In the case of the second appellant, as we have seen, the assurance makes it clear that, if extradited, he would be detained at Szombathely, which it is accepted is one of two prisons in Hungary which can reliably guarantee compliance with Article 3 standards. The Article 3 objection to his extradition has therefore fallen away.
However, the first appellant submits that the assurance in his case still does not adequately meet the systemic risk in Hungary because it does not specify the prison at which he will be detained if extradited. Mr Summers submits that there are only two prisons which reliably guarantee compliance with Article 3 (Szombathely and Tiszalök), but there is no assurance that the first appellant will be held in either of those two prisons. The respondents on the other hand submit that the assurances which have now been given are in precisely the terms which were approved by the Divisional Court in GS & Ors v Central District of Pest, Hungary & Ors [2016] EWHC 64 (Admin); [2016] 4 WLR 33, and that this court did not then consider it necessary for the assurances to be specific to a particular prison. The respondents also submit that the criteria in the European Court of Human Rights decision in Othman (Abu Qatada) v United Kingdom (2012) 55 EHRR 1 are satisfied in these appeals.
Factual background in the individual cases
The first appellant was born in Hungary on 20 September 1982. He was arrested in this country on 24 July 2017, and is now in custody at HMP Wandsworth. At the hearing before us, we were informed that in fact he is now on bail. A conviction European arrest warrant (“EAW”) was issued on 21 April 2017 and certified by the National Crime Agency (“NCA”) on 3 July 2017.
The first appellant faces two custodial sentences of 2 years and 9 months and 6 months respectively for two offences of illicit trafficking in narcotic drugs and psychotropic substances. He fled Hungary after his conviction and sentence. The district judge stated that the first appellant accepts that he committed the offences, although he does not accept that this was as part of a criminal organisation dealing in drugs.
The second appellant was born in Hungary on 12 May 1982. He was arrested on 30 June 2017 and is in custody at HMP Wandsworth. There are two EAWs. The first EAW (2301/2012) was issued on 7 May 2013 and certified by the NCA on 9 January 2016. This relates to various offences of burglary, forgery and other offences. He faces a total sentence of 3 years and 4 months' custody, with 2 months and 18 days having been served. He was found by the district judge to be an unreliable witness and to have absconded while he was on bail knowing that he was due to serve a sentence. The second EAW (1231/2015) was issued on 4 August 2016 and certified by the NCA on 9 August 2017. This relates to 25 burglaries committed in August and September 2010 and one drugs offence. The second appellant should serve a sentence of 4 years and 2 months' custody, of which 3 years, 9 months and 22 days still remain to be served.
Application to adjourn/amend on behalf of the second appellant
As we have indicated, it is now accepted that in the light of the assurance of 14 June 2018 the second appellant can now be extradited to Hungary, at least on the second EAW. The sole remaining issue on the second appellant's appeal relates to a limitation issue in respect of the first EAW, which has the reference number 2301/2012.
The first EAW stated on its face that: “The custodial sentences concerned shall lapse on 6 May 2018.” The appellant's first written submissions of 10 May 2018 concluded as follows:
“Finally, it appears that the limitation has very recently expired in respect of the second appellant's first EAW […] Should it be necessary to do so, the second appellant will apply to amend his grounds of appeal to add an Article 5 ECHR/section 82 ground insofar as that EAW is concerned.”
Reference was made to certain authorities in support of the submission...
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