János Orsós v Dr Antal Gábor, Penitentiary Judge at the Pécs Regional Court, Hungary

Hearing date: 23 November 2023

Approved Judgment

This judgment was handed down remotely at 10.30am on 12 December 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

This is a renewed application by János Orsós, the Applicant, for permission to appeal under Part 1 of the Extradition Act 2003 (EA 2003) against an order for his extradition to Hungary dated 13 December 2022. Johnson J refused permission on the papers on 21 July 2023.

The main bundle runs to nearly 1100 pages. This contains a number of authorities, and there is also a separate Authorities Bundle of over 200 pages. There is a quantity of what is said to be ‘updating’ or ‘fresh’ evidence on behalf of the Applicant. This material was served under cover of applications dated 4 January 2023, 27 July 2023, and 30 October 2023 respectively; two were opposed by the Respondent and there was no response in relation to the third. There are Renewal Grounds of Appeal and a Skeleton Argument.

The renewal application was listed for the usual 30 minutes, however Mr Bates addressed me for in excess of an hour. I am satisfied that the Applicant via Mr Bates was able to advance before me every point he wished to make either orally, or in writing (or both). At the conclusion of the hearing I reserved my decision and said I would put my reasons into writing, which I now do. I have re-read the necessary material while writing this judgment.

Proceedings below

The arrest warrant from Hungary is a conviction warrant. The Applicant has been sentenced to two years and nine months imprisonment, all of which remains to be served, for a number of offences of burglary, attempted burglary and theft. Following his apprehension he admitted at least some of the offences.

The Applicant contested extradition before the district judge on a number of grounds: (a) extradition considerations/s 13 of the EA 2003 (discrimination on grounds of his Roma origin); (b) s 14 (delay); (c) s 20/trial in absence; (d) s 21/Article 3/prison conditions/prejudicial treatment because of Roma origins; (e) s 20/Article 8.

The district judge rejected each of these challenges.

The Applicant's Perfected Grounds of Appeal of 4 January 2023 (see at [9]) were that:

a. Ground 1: [46]–[108] of Dr Kádár's expert report ought to have been admitted.

b. Ground 2: there was a reasonable chance, substantial grounds for thinking, or a serious possibility that, in the event of the Applicant's extradition, he would be punished, detained or restricted in his personal liberty by reason of his race.

c. Ground 3: the Applicant's extradition would not be compatible with Article 3 (taken alone and in conjunction with Article 14).

d. Ground 4: Mr Orsós' extradition would not be compatible with Article 8.

I will deal later with Dr Kádár's evidence. In broad terms, his report dealt with prisons/Article 3 and the treatment of Roma people in Hungary.

Decision of the single judge

The ‘updating’ or ‘fresh’ evidence (which I have considered de bene esse) consists principally of evidence from the Applicant's partner, [VS]; his sister, [AO]; and ECtHR material. [VS] was about 21 weeks pregnant as at 18 October 2023, and the baby is due in February 2024. The pregnancy was confirmed in June 2023, after the extradition hearing. The Applicant and his partner also have a young baby born in October 2022, and three other children.

In refusing permission, Johnson J said:

“ Fresh evidence: I would not allow the application to rely on fresh evidence. The ECHR decision is from 5 years ago, before the large-scale prison building programme (see at [96]). The District Judge took account of the new-born baby – the evidence does not amount to more than what might have been expected. I have, however, assumed (for the purposes of considering permission to appeal) that the fresh evidence would be admitted.

Ground 1 (admission of expert report): This was a case management decision. The report was served grossly late and only shortly before the hearing. An extension of time could have been sought, or a report could have been lodged without/before the assurance. The judge was entitled to exercise his discretion to exclude the bulk of the report (whilst allowing the applicant to rely on discrete passages relevant to Art 3 ECHR).

Ground 2 (s13/race discrimination): This ground is largely parasitic on ground 1, for which I do not grant permission. In any event, even if the report had been admitted, I do not consider it is arguable that the judge's decision was wrong. The report deals with the position of Roma people in Hungary generally, but does not support a claim that the appellant in particular will be punished, detained or restricted in his personal liberty by reason of his race.

Ground 3 (Article 3): An assurance had been granted in respect of space. Dr Kádár's evidence was out of date in that it was largely based on material that predated a significant prison building programme. The judge was entitled to conclude that the evidence did not establish that there were substantial grounds for believing that there was a real risk of the appellant being subject to inhuman or degrading treatment or punishment.

Ground 4 (Art 8): The judge applied the applicable legal principles and had regard to all relevant factors. He had particular regard to the children but, as he pointed out, this was not a sole carer case. The applicant was a fugitive sought on a conviction warrant where 2 years and 9 months remained to be served. The judge's conclusion was clearly correct.”

The renewed application and discussion

As I have indicated, a vast amount of material was filed for this (notionally) 30 minute renewal hearing. I do not propose to deal with every point and authority raised orally or in writing by Mr Bates.

Mr Bates took the grounds of appeal in a different order from how they were pleaded in the Perfected Grounds. In summary, he submitted as follows.

Article 8 ECHR (Ground 4). This being a fresh evidence case, it was for me to make my own assessment based on all the material whether extradition would be compatible with the Article 8(1) rights of the Applicant and his family or whether it would be disproportionate and so barred: Jozsa v Tribunal of Szekesfehervar, Hungary [2023] EWHC 2404 (Admin), [18]–[19].

There had been important developments since the extradition hearing, not least [VS]'s pregnancy. She had had complications with the birth of her fourth child, and she feared complications in relation to the upcoming birth. She would struggle financially and emotionally without the Applicant's support and was fearful of trying to cope without him. The Applicant's sister, who lives near them in a town in the North, is unable to assist and as at July 2023, was in the process of emigrating to Canada with her family. The sister was concerned about the well-being of [VS] and the children if [VS] has to carry, deliver, and care for a new baby on her own and alongside the other children (pp 35–36 of the renewal hearing bundle).

Mr Bates said that there was evidence about the Applicant's mental health and the effect of possible extradition, and that he had been missing work and was taking prescribed medication, Propanolol, which is used to treat anxiety and other conditions. There was also evidence that the mental health of his and [VS]'s second son was being adversely affected by the prospect of the Applicant's extradition.

Mr Bates therefore said that when the Article 8(1) Celinski balancing exercise was retaken on all the current material, it came down against extradition.

I disagree. In my judgment, just like the district judge (and Johnson J), I do not consider there is any arguable basis for saying that extradition would be incompatible with Article 8(1). I do not doubt extradition will have an impact on [VS] and the family, perhaps a significant impact, but it is not of the exceptionally severe type which could properly lead to a finding of incompatibility with Article 8(1). Nor do any of the other matters relied on tip the balance in the Applicant's favour.

The relevant principles are well understood and were correctly set out by the district judge at [107] et seq of his judgment. I did not understand Mr Bates to disagree. They were encapsulated by Lady Hale in H(H) v Deputy Prosecutor of the Italian Republic, Genoa [2013] 1 AC 338, [8]:

“(1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life. (2) There is no test of exceptionality in either context. (3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition. (4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no “safe havens” to which either can flee in the belief that they will not be sent back. (5) That public interest will always carry great weight, but the weight to be attached to it in the...