Csaba Nemeth, Maria Lakatos, Maria Horvath, Persons v Hungarian Judicial Authorities State
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 04 May 2022 |
| Neutral Citation | [2022] EWHC 1024 (Admin) |
| Docket Number | Case No: CO/1337/2021 CO/1358/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1024 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Fordham
Case No: CO/1337/2021
CO/1350/2021
CO/1358/2021
Mary Westcott (instructed by Lawrence & Co) for Csaba Nemeth
Amelia Nice (instructed by Lawrence & Co) for Maria Lakatos
Louisa Collins (instructed by Hodge Jones & Allen) for Maria Horvath
Amanda Bostock and Hannah Burton (instructed by CPS) for the Requesting State
Hearing date: 30/3/22
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:00 on 4.5.22
Introduction
This is a fourth judgment, following on from three earlier judgments from which the context can be seen. They are: [2021] EWHC 3366 (Admin) (9 December 2021); [2022] EWHC 224 (Admin) (3 February 2022); and [2022] EWHC 273 (Admin) (10 February 2022). It deals with the Requested Persons' applications for permission to appeal on the four points to which I referred to in §4 of the First Judgment, and §§4–10 of the Second Judgment. The arguments are directed at the judgment (“the Judgment”) of DJ Fanning (“the Judge”) on 8 April 2021 in the cases of Mr Nemeth and Ms Lakatos, after a hearing on 10 and 11 March 2021 at which they had been raised. In the Judgment, the Judge found against the Requested Persons in respect of each of the four points. Evidence adduced by the Requested Persons before the Judge included an expert report dated 17 th February 2021 (“the Report”), together with oral evidence, by an attorney at law in Budapest, Dr Csire (together, “the Expert Evidence”). The Requested Persons submit that it is reasonably arguable that the Judge was “wrong” in the case of the four points or any of them. They also rely on putative fresh material, submitting that it is capable of being decisive. Counsel for the Requesting State say it is not reasonably arguable that the Judge's conclusions were “wrong” on any of the four points, on the material before the Judge or having regard to all the material including the putative fresh evidence, which they say is incapable of being decisive. The Requested Persons' arguments were advanced by Ms Westcott and Ms Nice, and adopted by Ms Collins for Maria Horvath. The Requesting State's arguments were advanced by Ms Bostock and Ms Burton. By way of update, I was informed that the Bogdan case on the judicial independence issue (see First Judgment at §3 and Second Judgment at §4) had been considered by the High Court, at a hearing the day before this hearing before me, with judgment reserved. I decided, in all the circumstances, to reserve my judgment and hand it down in writing. That course enabled the parties to follow up promptly some ‘loose ends’ which had been raised at the hearing. This hearing was a one-day hearing by Microsoft Teams. All Counsel were satisfied, as was I, that that mode of hearing involved no prejudice to the interests of their clients. I am satisfied that a remote hearing was justified and appropriate in the circumstances. The open justice principle was secured. The hearing, its start time and its mode of hearing were all published in the Court's cause list, as was an email address, usable by any member of the press or public who wished to observe the public hearing.
Materials
Several bundles were before the Court, including a Core Bundle of materials and an Authorities Bundle. I want to convey an appreciation of the breadth and depth of materials that were before me, referenced in the written and oral arguments. In addition to the materials which I will set out below, Popviciu v Romania [2021] EWHC 1584 (Admin) was cited at the hearing and the ‘loose ends’ led to the post-hearing citation of: (a) Committee of Ministers' Analysis Varga/ Kovacs group (i) Meeting Notes, 6–7 June 2017 and (ii) Meeting Decision, 7 June 2017; and (b) the judgment of the Strasbourg Court (ECtHR) in Domjan v Hungary Application No. 5433/17 (23 November 2017). The Core Bundle included the following at tabs 12–38 and 41, as described in the bundle index:
Supervision of ECtHR Decisions. 12. Committee of Ministers' Analysis Varga/ Kovacs group (14097/12 and 15707/10 – prisons etc): a. NGO (HHC) submissions, 2 February 2021 b. NGO (HHC) submissions, 26 January 2021 c. Meeting Notes, 11 March 2021 d. Meeting Decision, 11 March 2021 e. NGO (HHC) Submissions, 16 March 2021. 13. Material relating to X.Y. Group (43888/08 – Article 5 etc): a. Complete list of repetitive, unresolved cases in the X.Y. Group, including Suveges v Hungary (50255/12) b. Government “Action Report”, 13 March 2019. 14. Committee of Ministers' Analysis Gazso group (No. 48322/12) (endemic delays): a. Decision, 9 June 2021 b. Meeting notes, 9 June 2021 c. Meeting notes, 2 December 2021 15. Baka (20261/12) (judicial independence etc): a. Decision, 1 October 2021 b. Meeting notes, 1 October 2021 16. NGO (HHC) Submissions to Committee of Ministers in Gubasci group (44686/07) (police ill treatment) a. 28 October 2021 (CPT recommendations not implemented) b. 15 October 2021 (Government plan does not address systemic deficiencies, including in monitoring) c. 2 December 2021 Decision of Committee of Ministers.
Council of Europe. 17. CPT Report, 17 March 2020 (visit 20–29 November 2018) 18. CPT Further Statement on COVID-19, 9 July 2020 19. CPT “Women in Prison”, factsheet January 2018. 20. Venice Commission Opinion No. 1035/2021, Hungary, Opinion on the constitutional amendments adopted by the Hungarian parliament in December 2020, 2 July 2021 21. Venice Commission Opinion No. 1051/2021, Hungary, on the amendments to the Act on Equal Treatment and Promotion of Equal Opportunities and to the Act on the Commissioner for Fundamental Rights as adopted by the Hungarian parliament in December 2020, 18 October 2021 .
European Parliament. 22. European Parliament Resolution on ongoing hearings under Article 7(1) of the TEU regarding Poland and Hungary (2020/2513(RSP)), text adopted 16 January 2020 23. European Parliament Resolution on a proposal calling on the Council to determine, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded (2017/2131(INL)), 12 September 2018 24. European Parliament Resolution on breaches of EU law and of the rights of LGBTIQ citizens in Hungary as a result of the legal changes adopted by the Hungarian Parliament (2021/2780(RSP)), 8 July 2021 25. Motion for a European Parliament Resolution to wind up the debate … on the rule of law and consequences of the ECJ Ruling (2022/2535(RSP)), 2 March 2022 .
United Nations. 26. UN Committee on the Elimination of Racial Discrimination, concluding observations, 6 June 2019 27. Compilation Report on Hungary of the Office of the High Commissioner for Human Rights (OHCHR) to the Working Group on the Universal Periodic Review, 25 August 2021 28. Summary of Hungarian Stakeholders' submissions to the Working Group on the Universal Periodic Review, 25 August 2021 Miscellaneous 29. HHC on discrimination against Roma people in the Hungarian Criminal Justice system, 2020 30. HHC & Amnesty International Timeline on undermining of the independence of the judiciary, 2012 – 2019 31. HHC Assessment of the activities and independence of the Ombudsman, September 2019 32. US State Department Report for 2019 on Hungary, 2020 33. Joint NGO submissions to European Commission, 11 March 2021 34. Commissioner for Fundamental Rights of Hungary (Ombudsman), Summary of Report No. AJB-874/2021 OPCAT National Preventive Mechanism Hungarian (following visit to Marianosztra strict / medium regime prison under COVID-19 restrictions in February 2021) 35. Minority Rights Group Europe: Roma in Hungary: The challenges of discrimination, March 2021 36. HHC and NGO summary of paper on the Non-Execution of Domestic and International Court Judgments in Hungary, 2 December 2021 37. Freedom House (NGO), Freedom in the World Report 2021: Hungary “partly free”) 38. HHC briefing paper regarding Hungary's emergency regimes introduced due to the COVID-19 pandemic, 1 January 2022 … 41. HHC Last Among Equals, report, 2014 .
The Authorities Bundle included the following 58 items, again as described in the bundle index:
Fresh Material. 1 . FK v Germany [2017] EWHC 2160 (Admin).
Section 2(2) Independence. 2 . Lis, Lange and Chimielewski v Poland (No 1) [2018] EWHC 2848 (Admin) 3. Wozniak & Chablicz v Poland [2021] EWHC 2557 (Admin) 4. L & P (C-354/20 PPU and C-412/20 PPU, 17 December 2020) [2021] 2 C.M.L.R. 24.
Article 3 ECHR — General principles. 5 . Targosinski v Poland [2011] EWHC 312 (Admin) 6. Palczynski v Poland [2011] EWHC 445 (Admin) 7. Agius v Malta [2011] EWHC 759 (Admin) 8. Krolik & Others v Poland [2013] 1 WLR 490 [2013] EWHC 2357 (Admin) 9. Elashmawy v Italy [2015] EWHC 28 (Admin) 10. Romania & Others v Zagrean & Others [2016] EWHC 2786 11. Mohammed v Portugal [2017] EWHC 3237 (Admin) 1 12. Jane No. 1 v Lithuania [2018] EWHC 1122 (Admin) 13. Soering v UK (1989) 11 EHRR 439 14. Mursic v Croatia (2017) 65 EHRR 1 15. Bivolaru and Moldovan v France (40324/16 and 12623/17), 25 March 2021 16. Aranyosi and Caldararu [2016] QB 921 17. ML (C-220/18 PPU) [2019] 1 WLR 1052.
Section 21 EA 2003 / Article 3 ECHR Hungary. 18 . Nikolics v Hungary [2013] EWHC 2377 (Section 13(b) EA 2003) 19. GS v Hungary [2016] 4...
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