Csaba Nemeth v Hungarian Judicial Authorities
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 29 July 2022 |
| Neutral Citation | [2022] EWHC 2032 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1337/2021 CO/1358/2021 |
[2022] EWHC 2032 (Admin)
Mr Justice Fordham
Case No: CO/1337/2021
CO/1350/2021
CO/1358/2021
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 (in writing)
Amanda Bostock and Hannah Burton (instructed by CPS) for the Requesting State
Hearing date: 29/7/22
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 in a remote hearing.
Introduction
I have given four previous judgments in these cases. They are: First Judgment [2021] EWHC 3366 (Admin) (9 December 2021); Second Judgment [2022] EWHC 224 (Admin) (3 February 2022); Third Judgment [2022] EWHC 273 (Admin) (10 February 2022); and Fourth Judgment [2022] EWHC 1024 (Admin) (4 May 2022). The Bogdan v Hungary CO/3601/2021 lead case, heard on 29 March 2022, has now been determined, adversely to the requested person in that case: see [2022] EWHC 1149 (Admin) (Julian Knowles J, 18 May 2022). It is therefore appropriate to return to the Bogdan issue which I stayed in these cases ( First Judgment §3). In accordance with directions that I had earlier made, the parties filed their written submissions on how the section 2/Article 6 issue should be determined in light of the judgment in Bogdan. Having read and considered those submissions, I made an order adjourning these applications for permission to appeal on this issue into open court. I have been assisted by the written submissions, by the materials relied on, and by detailed oral arguments on behalf of the requested persons made at this hearing. This was a remote hearing by MS Teams. Counsel were satisfied, as was I, that the mode of hearing involved no prejudice to the interests of their clients. Maria Horvath's team confirmed that they were satisfied that the section 2/Article 6 arguments could properly be advanced by Ms Westcott and Ms Nice, in the absence of Ms Collins who had been a co-signatory to the skeleton argument for this hearing. The open justice principle was secured through the publication of the case, its start time and its mode of hearing in the cause list, together with the usual email address usable by any member of the press or public who wished to observe the public hearing. The essence of the argument on behalf of the requested persons is that it is reasonably arguable that the evidence related to erosion of the rule of law and of judicial independence in Hungary, considered against the specific context and circumstances of the present cases, mean that (a) the Extradition Arrest Warrants in the present cases have not been issued by a “judicial authority” (section 2) or alternatively that (b) there is a real risk of a flagrant breach of the right to a fair trial in breach of Article 6 (or Article 5, given the prospect of imprisonment as a consequence). The approach in law is discussed in Wozniak v Poland [2021] EWHC 2557 (Admin).
“Flagrant”
A first question of law which arose in particular out of the oral submissions made today relates to the word “flagrant”. Ms Westcott drew my attention as the principled framework for the ‘two-stage test’ which arises in relation to the issue to the Luxembourg Court's judgment in L & P (C-354/20 PPU and C-412/20 PPU, 17 December 2020) [2021] 2 CMLR 24 and in particular to §61, quoted in Bogdan at §23. She emphasised in the light of submissions she made about ‘summaries’ of the two-stage test – in particular by one of the district judges who dealt with these cases in the courts below – the importance of recognising and applying the entirety of the relevant passage from L & P §61. It describes the second step as follows:
… to assess … whether, having regard to the personal situation of the person whose surrender is requested by the European arrest warrant concerned, the nature of the offence for which he or she is being prosecuted and the factual context in which the arrest warrant was issued, such as statements by public authorities which are liable to interfere with the way in which an individual case is handled, and having regard to information which may have been communicated to it by the issuing judicial authority pursuant to Article 15(2) of [the EAW Framework Decision], there are substantial grounds for believing that that person will run a real risk of breach of his or her right to a fair hearing once he or she has been surrendered to the issuing Member State .
One of the features of that passage is that the word “flagrant” does not appear within it. Ms Westcott accepted, however, that in substance the same considerations inform the section 2 independence (judicial authority) analysis as inform the Article 6 (and 5) “flagrant breach” analysis. She accepted that there is a convergence in the analytical framework derived from the Luxembourg and Strasbourg Courts, albeit that it is the Strasbourg Court whose jurisprudence uses the word “flagrant”. She properly invited my attention to the passages in the Wozniak judgment where this point was debated, including at §52 where the Court records the requesting state authority's response as to whether there was a material difference. Ms Westcott also very fairly drew my attention to §184 in the judgment in Wozniak. There, the PQBD and Julian Knowles J explained that it is indeed the same concept of the real risk of a “flagrant” denial of justice which is in play in the context of the two linked section 2 and Article 6 arguments. Ms Westcott, on reflection, accepted that. In my judgment, beyond argument, she was right to do so. What that means, as Ms Westcott also accepted, is that really the central question on the proper application of the two-stage process – correctly approached – is to consider whether there are substantial grounds for believing that there is a real risk that the requested persons in these cases would face a flagrant denial of their fair hearing or fair trial rights.
Stage 2 and the ‘exclusion’ of generic/systemic aspects
A second point of principle arose and was helpfully teased out by the oral submissions made at the hearing today. Although Ms Westcott and Ms Nice put this point at the end of their oral submissions in my judgment it would be appropriate to address it at the outset. The question is whether the ‘generic’ and ‘systemic’ materials and concerns which inform the Stage 1 question somehow cease to be relevant when a Court arrives at Stage 2. Stage 1 as it was summarised by Julian Knowles J in Bogdan §21 focuses on:
… evidence of systemic or generalised deficiencies concerning the independence of the judiciary in the Member State that issues that arrest warrant which existed at the time of issue of that warrant or which arose after that issue …
There are other descriptions of that first stage including L & P at §59 which Julian Knowles J went on to quote in Bogdan at §23.
Ultimately, Ms Westcott's submission was that the argument she advanced in relation to the ‘general’ and the ‘specific’ and the two-staged approach – linked to the question of requesting further information from the requesting state – warrants the grant of permission to appeal for the same reasons as were discussed at Bogdan §§68–76. That reasoning discusses whether a point of principle could justify the grant of permission to appeal by this Court, for the purposes of potentially accessing the Supreme Court. Ms Westcott emphasises the phrase at Bogdan §75 where Julian Knowles J referred to the situation “where there is a body of material casting doubt over the correctness of otherwise binding authority and convincingly suggesting that a higher court might correct the position.”
The essence of the argument went as follows. The domestic case law has gone off the rails. It is clear from L & P that the Luxembourg court at §61 was contemplating that the ‘general’ materials and concerns, related to generalised and systemic matters, would be part of the factual and evidential matrix informing the assessment of the ‘specific’ Stage 2 question regarding the position of the individual requested person or requested persons. On that basis, goes the argument, the Stage 2 analysis cannot properly ‘exclude’ the nature of the concerns and the relevant materials that have informed Stage 1. As I put to Ms Westcott in argument, and she embraced, the stronger the relevant ‘general’ material in relation to Stage 1 the shorter the step may need to be for an individual requested person at the ‘specific’ Stage 2. Ms Westcott and Ms Nice submit that where things have gone wrong is in the domestic case law, or at least the understanding of that case law. They rely on Wozniak §200 where the Divisional Court said:
… we are satisfied that it is not permissible to extrapolate from the general situation in Poland and the systemic threats to independence identified in the material we have set out, serious though they are, that there is specific and real risk of breach of the appellants' fundamental right to a fair trial, so as to make it unnecessary to carry out a specific and precise assessment on the facts of their particular cases. In other words, it is still necessary … to make an assessment that: ‘… [has] regard to his personal situation, as well as to the nature of the offence...
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