Gabor Agardi v Penitentiary Judge of the Metropolitan Court, Budapest, Hungary
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens |
| Judgment Date | 30 October 2014 |
| Neutral Citation | [2014] EWHC 3433 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3354/2014 |
| Date | 30 October 2014 |
[2014] EWHC 3433 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Aikens
Mr Justice Ouseley
and
Mrs Justice Thirlwall
Case No: CO/3354/2014
David Josse QC & Rebecca Hill (instructed by Lawrence & Co) for the Applicant
Mark Summers QC & Nick Hearn (instructed by the Crown Prosecution Service) for the Respondent
Hearing date: 07/10/2014
This is the judgment of the court.
I. The Issue
The question of principle raised in this case is whether or not the High Court has jurisdiction to extend the time in which a non-British citizen who is subject to an extradition order of a District Judge under Part 1 of the Extradition Act 2003 ("the EA") can make an appeal, notwithstanding a failure to comply with the strict time limits imposed by section 26(4) of the EA and notwithstanding the decisions of the House of Lords in Mucelli v Government of Albania; Moulai v Deputy Public Prosecutor de Creteil, France1 and the Supreme Court in Pomiechowski v District Court of Legnica, Poland; Halligen v Secretary of State for the Home Department. 2 If the court has jurisdiction to extend the time limit there would then be a subsidiary question of whether time should be extended on the facts of this case. This case was adjourned by Keith J on 25 July 2014 so that the court could consider two points as preliminary issues in this appeal, which is, effectively, a "test case".
The Penitentiary Judge of the Metropolitan Court in Budapest, Hungary, seeks the surrender of Gabor Agardi, a Hungarian national, pursuant to a "conviction" European Arrest Warrant ("EAW"), issued on 7 December 2012 and certified by the Serious Organised Crime Agency on 17 May 2013. The EAW requests Mr Agardi's return to Hungary to serve outstanding prison sentences for offences of fraud and violence. Hungary has, of course, been designated a Category 1 territory pursuant to section 1 of the EA, so that Part 1 of the EA applies to all questions concerning the EAW and Mr Agardi's rights in respect of it, including his right to appeal an extradition order made against him.
Mr Agardi challenged the EAW. He alleged that his surrender would place him at a real risk of inhumane and degrading treatment because of the state of Hungarian prison conditions, so that a surrender by the UK would be contrary to his rights under Article 33 of the European Convention on Human Rights ("ECHR"). He therefore contended that he must be discharged in accordance with section 21 of the EA. He also asserted that his surrender would be a disproportionate interference with his Article 8 rights. His case, together with that of Andras Horvath, which raised the same Article 3 objection to surrender, were considered at a full extradition hearing by District Judge Zani on 8 April 2014. On 8 July 2014 DJ Zani handed down his judgment rejecting the Article 3 and Article 8 objections in both cases. He ordered the surrender of both Mr Agardi and Mr Horvath.
Mr Agardi wished to appeal and he immediately told his counsel that this was so. Section 26(4) of the EA stipulates that a notice of appeal must be given "in accordance with rules of court before the end of the permitted period, which is 7 days starting with the day on which the order is made". The notice of appeal should
therefore have been lodged and served by 14 July 2014. It was not lodged until 17 July and so was out of time.In Mucelli v Government of Albania; Moulai v Deputy Public Prosecutor de Creteil, France4 the House of Lords held (unanimously on this point) that the statutory time limit in section 26(4) was fixed and there could not be any extension of time in the absence of any statutory provision for it, of which there were none. Then in Pomiechowski v District Court of Legnica, Poland; Halligen v Secretary of State for the Home Department, 5 the Supreme Court held that, in the case of Mr Halligen, a British citizen whose extradition was sought by the USA, (a Category 2 territory to which Part 2 of the EA applies), the time limit for giving a notice of appeal to the High Court set out in section 108(4) 6 was capable of extension in "exceptional circumstances". The reasoning (which we will have to consider in more detail below) is, in summary, that a British citizen 7 enjoys a common law or civil law right to enter and leave the United Kingdom as he wishes and the provisions of the EA by which a British citizen can be extradited and so made to leave the UK against his will, impinge on this common law or civil right. Therefore proceedings, including extradition proceedings, which determine whether this civil law right of a British citizen is to be curtailed (in that case by ordering extradition to the USA), fall within Article 6(1) of the ECHR. 8 Accordingly, in so far as the provisions relating to extradition proceedings under Part 2 of the EA contain a right of appeal against any extradition decision, Article 6(1) of the ECHR requires that this right of appeal be free of limitations that would impair the "very essence" of that right of appeal. Moreover, any limitations on the right of appeal must also pursue a legitimate aim and involve a "reasonable relationship of proportionality between the means employed and the aim sought to be achieved". 9 The provisions in section 108(4) of the EA did not meet those requirements. However, the sub-section could be read so as to make it subject to the qualification that the court will have a discretion in exceptional circumstances to extend time for the filing and service of a notice of appeal, "where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process that [the ECtHR had] held to exist". 10 The Supreme Court's reasoning plainly also applies to section 26(4) of the EA, the appeal provision in Part 1 of the EA.
The issue that arises in this case, therefore, is whether, in the light of these decisions, this court has any jurisdiction to extend the time in which to lodge and serve a notice of appeal in extradition proceedings in the following circumstances: (1) it is a case to
which Part 1 of the EA applies; (2) the proposed appellant is not a British citizen but is an EU national; and (3) the ground on which the person resists surrender under Part 1 of the EA is that to do so would be contrary to one of his Convention rights, viz. Article 3.II. The legal background in some more detail.
Part 1 of the EA gives UK domestic law effect to the Council Framework Decision of 13 June 2002 "on the European Arrest Warrant and the surrender procedures between Member States" of the European Union ("the Framework Decision"). Part 1 of the EA applies to countries which have been designated "Category 1" states; in effect these are the Member States of the EU who are party to the Framework Decision. The Framework Decision provisions do not stipulate that there should be a right of appeal from any order by a court for surrender of a requested person nor do they preclude such a right. The provisions do not stipulate any procedural requirements if there is an appeal mechanism under the domestic law which implements the Framework Decision. In Jeremy F v Premier Ministre11 the Court of Justice of the European Union ("CJEU"), held in a preliminary ruling on a question of law raised by the French Conseil Constitutionnel that provisions in domestic law that gave a right of appeal against a decision of a court ordering surrender would not be incompatible with the terms of the Framework Decision. Section 26 of the EA grants a right of appeal against a contested "extradition order" 12 that has been made by a District Judge in response to a request made in an EAW issued by another judicial authority in a Category 1 state. Both Mr Josse QC, on behalf of Mr Agardi, and Mr Summers QC on behalf of the Requesting Court, accepted in argument before us that the provisions in section 26 are purely domestic in origin and that they do not reflect anything in the Framework Decision.
As already noted, Part 2 of the EA deals with extradition to so called "Category 2" countries. For these states a different and "more traditional scheme" 13 of extradition applies. In Part 2 cases the judge has to decide whether or not to send a case to the Secretary of State for her decision on whether to extradite someone. There is a right of appeal from that decision on the part of the individual under section 103 and the individual also has a right of appeal, under section 108, from a decision of the Secretary of State to order extradition. As has also already been noted, the time limits for instituting the appeal process is short in both Part 1 and Part 2 cases: 7 days for a Part 1 appeal and 14 days in the case of a Part 2 appeal.
The effect of these short time limits for making appeals have been the subject of controversy in the courts. In Mucelli the House of Lords had, first, to consider what was meant by the phrase "Notice of appeal…must be given" in sections 26(4) and 103(9). 14 The question was whether the appeal notice had just to be filed in the High Court within the relevant time period, or whether it had also to be served on the respondent within that period. The second question the House of Lords had to consider was whether the court that would consider the appeal was precluded from extending time for the filing and/or the service of the appeal notice. Lord...
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