CSABA Nemeth v Hungarian Judicial Authorities
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 03 February 2022 |
| Neutral Citation | [2022] EWHC 224 (Admin) |
| Docket Number | Case No: CO/1337/2021 CO/1358/2021 CO/1518/2021 |
| Year | 2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 224 (Admin)
Mr Justice Fordham
Case No: CO/1337/2021
CO/1350/2021
CO/1358/2021
CO/1518/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
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: 3/2/22
Judgment as delivered in open court at the hearing
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
Note: This judgment was produced and approved by the Judge, after using voice-recognition software during an ex tempore judgment.
This is a Second Judgment
This judgment arises out of the Reconvened Hearing which I had described in my first judgment in these cases, on 9 December 2021: see [2021] EWHC 3366 (Admin) (the “First Judgment”) at §1. No party has invited further reasons regarding anything dealt with there (see First Judgment §1).
There was a January Order
One development, subsequent to the First Judgment, was that the representatives in Marina Horvath's case were able to agree case-management directions for the Requesting State's appeal (First Judgment §§9–14). I made those directions within an Order which I made on 19 January 2022 (“the January Order”). It was also agreed between the parties, and embodied in that Order, that Marina Horvath's case would be “severed” from these remaining three cases, and that what was described as the “cross-appeal” of Marina Horvath was “withdrawn” (a topic to which I will return shortly). Within the January Order, I also acceded to an application by Marina Horvath to extend the representation order in her case, to include the instruction of a child psychology expert. As to that, I explained (in the reasons within the January Order) that I had been persuaded by the special circumstances to take that course, given in particular: Marina Horvath's position as respondent; the centrality to the Article 8 analysis (based largely on observations in HH: see First Judgment §12) of the welfare of a young child; on which topic an informed and up-to-date expert report could now be prepared for the assistance of the Court dealing with the substantive appeal.
Withdrawal of Marina Horvath's “cross-appeal”
The withdrawal of Marina Horvath's “cross-appeal”, embodied in the January Order, was explained by her representatives to arise out of dicta in USA v Assange [2021] EWHC 2528 (Admin) at §31. The basis of withdrawal was this. If the Requesting State's appeal succeeded and DJ Fanning's decision to discharge her were quashed, and if the matter were then remitted and extradition were ordered, Marina Horvath would at that stage seek leave to appeal on the grounds which DJ Fanning had originally rejected and which had been the subject of the “cross-appeal”. The Requesting State confirmed that it agreed with that analysis, as being the consequence and basis of the withdrawal. What I did was to record all of this, in recitals within the January Order. In the circumstances, it was not necessary for the Court to come to any view, on any question relating to jurisdiction and “cross-appeals”, for the purposes of making the January Order.
Application to stay other matters, said to be linked to Bogdan
All parties' representatives commendably liaised and cooperated in devising an agenda for today's one-day hearing. They worked hard to assist the Court within that timetable. Happily, they were able to identify a detailed list of pre-reading. Even more happily, as it happens, I had the whole of a day available yesterday in which I was able to undertake that discipline. The first topic arising for determination is the issue which I described in the First Judgment at §4. That is the question of whether in addition to the Bogdan stay on the ‘judicial independence’ issue (First Judgment §3) there should also be a stay in relation to four “other matters” (First Judgment §4). Counsel approached those on the basis that topics (3) and (4) were intimately linked and they were right to do so. Although to some extent Counsel for the Requested Persons found themselves outlining the nature of the grounds of appeal which it is intended that they will advance in relation to those topics, it was made clear at today's hearing that the Court's function was only to consider the question of a stay. I have reached no view on any question as to the reasonable arguability of any of those points. I announced in Court this morning that I had concluded that it was not appropriate to stay any of those matters, and what follows are the reasons why I arrived at that conclusion.
In relation to ‘endemic delays’ the scene has been set as to the relevant Strasbourg case-law relating to prolonged pre-trial detention as engaging both Article 5 and Article 6 ECHR and examples of violations found by the Strasbourg court. The Requested Persons accept that the questions of a sufficiency of courts and an efficiency of judicial process are not the same as the question of judicial independence. Having more judges and having faster judges is not the same thing as having independent judges. Reliance is placed, on this part of the cases, on a Report by Ministers' Deputies (dated 9.6.21) on the excessive length of judicial proceedings including in criminal matters in Hungary and the lack of an effective remedy. Within that Report is a description of the way in which “excessive delays in the administration of justice constitute a serious danger for respect for the rule of law”. Emphasis is placed on that description as demonstrating the inevitable link between rule of law issues and endemic delays. In addition, reliance is placed on this theme: the significance of ‘effective judicial protection’, and on the detrimental and ‘chilling’ effect of ‘compromised judicial independence’, viewed in terms of the weakening or absence of a necessary legal safeguard (here, in the context of securing protection against endemic delays, viewed against the standards of Articles 5 and 6).
In relation to ill-treatment of detained accused persons of Roma ethnicity, reliance was placed on the expert report (of Dr Csire) relied on before DJ Fanning in the cases of Mr Nemeth and Ms Lakatos and I was shown passages from that report dealing with the nature of that ill-treatment. Other materials relied on and shown to the Court emphasised the importance of ‘measures’ said to be needed to provide protection for detainees of Roma ethnicity. Specific reliance was placed on Venice Commission materials describing a weakening in a layer of protection previously provided by the Equal Treatment Authority (“ETA”) in Hungary, whose effectiveness was said to have been undermined by reform arrangements involving a ‘merger’, all described in a Report (dated 18.10.21). The same theme as arose in relation to endemic delays was raised in the context of ill-treatment of detainees (whether awaiting trial or post-sentence) of Roma ethnicity, namely that compromising the independence of the Hungarian judiciary undermines a vital layer of ‘effective judicial protection’ so far as concerns the standards within Hungarian law for vindicating the rights of detainees of Roma ethnicity.
In relation to prison conditions and the interrelated topics of overcrowding, guaranteed floorspace assurances and supervision, a number of points were emphasised. As with the position of the ETA and protection against discriminatory ill-treatment, reliance was placed on materials describing a weakening through downgrading of the role of the Ombudsman (“CFR”). In that context the link to ‘independence’ was emphasised by reference to a passage describing the importance of independence in relation to the CFR as a supervising authority. While being shown passages from the April 2021 judgment of the Supreme Court in Zabolotnyi v Hungary [2021] UKSC 14 [2021] 1 WLR 2569, I asked whether reliance was being placed – in the context of prison conditions – by the Requested Persons on a reference in §62(6) of Zabolotnyi to the role of “penitentiary judges”, but it was (very fairly) conceded, in response to that question, that that cohort of the Hungarian judiciary is, rather, one ‘concerned with decisions about parole’. Again, the general theme was invoked as to the consequences for ‘effective judicial protection’ in relation to applicable legal standards, if it is the case that the independence of the judiciary has been undermined.
Notwithstanding the sustained attempts to establish a need, and justification, for staying the applications for permission to appeal on all of these topics in these cases pending the resolution of the ‘judicial independence’ issue raised in Bogdan, in my judgment, the Requested Persons were unable to identify any convincing overlap or other reason justifying this Court ordering such a stay. As the Requesting State rightly emphasises, the pending issues in Bogdan concerns very specific questions, viewed through a very specific legal lens, as to ‘judicial independence’ and as to any ‘direct implications’, should a relevant conclusion regarding the ‘compromise of judicial independence’ be reached. The arguments in Bogdan are about what constitutes a ‘judicial authority’ for the purposes of section 2 of the 2003 Act. The interrelationship between independence of the ‘judicial authority’ for the purposes of section 2 in a conviction warrant case like Bogdan, and in...
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Csaba Nemeth, Maria Lakatos, Maria Horvath, Persons v Hungarian Judicial Authorities State
...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 ......
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