Lendvai v Veszprem City Court - Hungary
| Jurisdiction | England & Wales |
| Judge | Hickinbottom J |
| Judgment Date | 07 December 2009 |
| Neutral Citation | [2009] EWHC 3431 (Admin) |
| Docket Number | CO/7547/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 December 2009 |
[2009] EWHC 3431 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr Justice Hickinbottom
CO/7547/2009
Mr Ben Brandon (instructed by Kamrans) appeared on behalf of the Claimant
Miss Rachel Kapila (instructed by Crown Prosecution Service) appeared on behalf of the Defendant. Miss Amanda Jones appeared on behalf of the Defendant on 7 December 2009
MR JUSTICE HICKINBOTTOM: The Appellant Szilvia Némethné Lendvai appeals against the decision of Designated District Judge Nicholas Evans of 7 July 2009, ordering her extradition to Hungary to face two charges of fraud, that extradition being sought by the Veszprém City Court pursuant to a European Arrest Warrant issued on 19 January 2008 and confirmed by the Serious Organised Crime Agency on 28 July 2008. It is alleged that, on 15 and again on 26 November 2005, the Appellant with her partner Ms Gyöngi Meder submitted applications for product loans to the Elektro Pont Shop in Tapolca, Hungary, using false documents, the resulting loans therefore being procured by deception causing a 400,000 HUF (about £1,200) loss to the bank extending the credit.
Hungary has been designated a Category 1 territory pursuant to Section 1 of the Extradition Act 2003. Consequently, Part 1 of the 2003 Act applies. Because it is relevant later, I should also add that Hungary is a ratified signatory to the European Convention on Human Rights (“the ECHR”).
Before the District Judge, the Appellant relied upon two grounds for contending that she should be discharged.
First, it was submitted that the Appellant's extradition was barred by extraneous considerations. Under Sections 11(1)(b) and 13(b) of the 2003 Act, a person's extradition is barred if it appears that -
“if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions.”
The Appellant contended that, if extradited to Hungary, she would be so prejudiced because she is a Roma and a lesbian.
Second, for similar reasons and having regard to the risk of her committing suicide if returned to Hungary, it was submitted that the Appellant's extradition would not be compatible with her rights under Articles 3, 6 and 8 of the ECHR.
The District Judge rejected those submissions, and ordered the Appellant's extradition. She now appeals under Section 26 of the 2003 Act. By Section 27(3), an appeal may only be allowed if the District Judge ought to have decided a question before him differently and, if he had decided that question as he ought to have done, he would have ordered the person's discharge. Reflecting her submissions before the District Judge, Miss Rachel Kapila for the Appellant contended before me that the District Judge ought to have found (i) that, if extradited to Hungary, the Appellant might be prejudiced at trial or punished, detained or have her liberty restricted by reason of her race and/or sexual orientation, and (ii) her return to Hungary would put the United Kingdom in breach of its obligations under the ECHR. While each of those grounds was maintained, the focus of Miss Kapila's submissions before me was that, in all of the circumstances but particularly in the light of the high risk of the Appellant committing suicide if returned to Hungary, in extraditing her the United Kingdom would be in breach of its obligations under Article 8 of the ECHR.
Each ground relied upon the same factual background. In addition to her own evidence, before the District Judge the Appellant relied upon three experts who gave evidence as to discrimination in Hungary against Roma and those of a sexual orientation other than heterosexual.
Dr Martin Kovats is a part-time lecturer in European politics at Birkbeck College, University of London, and has conducted research into Roma policy in Hungary and elsewhere in Europe. He produced two reports dated March and May 2009, and gave oral evidence before the District Judge.
He said that there was widespread ground-level prejudice and discrimination against Roma in Hungary, with a recent “sharp rise in racism in public discourse” (March 2009 Report, paragraph 15). Regarding treatment of Roma in the criminal justice system, in giving any opinion he said that he was constrained by a lack of data. However, in Hungary, the law prohibited discrimination and required equal treatment. He said he “would hope” that any judge in Hungary would act in accordance with the law and due process.
He acknowledged in cross-examination that there was some evidence of the Hungarian courts acting to protect the rights of Roma: and, since 2005, the Hungarian government had set up an Equal Treatment Agency within the Ministry of Social Affairs to deal with complaints involving any form of discrimination. They appeared to uphold about 50% of complaints made (March 2009 Report, paragraph 19). Parliamentary Commissioners for Civil Rights and Minority Rights have also been appointed. Successive Hungarian governments, he said, have sought to improve police attitudes/behaviour towards Roma (paragraph 25). As they were relatively well-educated, he considered the Appellant and her partner (who is half-Roma) were not the most vulnerable individuals within the Roma community. He said there were data to suggest that 35-60% of the prison population in Hungary is Roma. The most recent report of the Council of Europe's European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment, based upon visits to Hungarian penal institutions, made no adverse comment about the treatment of Roma.
The second expert was Dr Judit Takács, an expert in gay and lesbian issues at the Institute of Sociology at the Hungarian Academy of Sciences, Budapest, who gave evidence in the form of an undated written report. She said that the Appellant is protected from discrimination on the grounds of sexual orientation “in theory”, by which I understand her to mean “by law” which has prohibited discrimination on the basis of sexual orientation since 2001. However, she said that in practice the Appellant was still at risk of discrimination, and indeed of “multiple discrimination” on grounds of ethnicity and sexual orientation (Report, paragraph 5). She said that there was “a theoretical possibility” that the Appellant may not receive a fair trial because of her sexual orientation, but there is no way of proving empirically that such discrimination “has ever happened in Hungary … nor that this is very likely to happen in the future” (paragraph 4).
Third, there was a report from Professor Gábor Halmai, Director of the Institute of Political and International Studies at Eötvös Lóránd University, and of the Hungarian Human Rights Information and Documentation Centre. His short report agreed with the views of Dr Kovats and Dr Takács.
The Appellant also relied upon a US Department of State Country Report on Human Rights Practice in Hungary (25 February 2009), which expressed general concern about rising levels of discrimination in Hungary against Roma, including reports of police abuse; and against gays, by “extremist groups”.
Before the District Judge, the Appellant herself gave evidence, saying, in general terms, that she and her partner had suffered much discrimination in Hungary on the grounds of their Roma ethnicity and sexual orientation (statement 7 May 2009, paragraph 2).
About 6 years ago, the Appellant served a 9 month prison sentence in Hungary. Her statement said that this was served in 2003, but that was corrected before me to 2004. It was in prison that she met her current partner. She described her sentence as traumatic. Prison officers had made her have cold showers; they used abusive, discriminatory language; on one occasion two officers chained her to a lamp-post outside in the rain for over an hour; parcels sent to her were never received; telephone calls were restricted to a few minutes; she was not allowed to work in prison, nor was she allowed the usual 3 days per month home leave. However, the Hungarian Ministry of Justice and Law Enforcement, and the Hungarian Prison Headquarters, have said, in a letter dated 26 May 2009, that the Appellant made no contemporaneous complaints about this treatment. She had the right to make such complaint under the statutory provisions which flow from Article 70A of the Hungarian Constitution, which guarantees respect for human rights without discrimination on any ground.
Finally, the Appellant relied upon a report dated 11 June 2009 from Dr Richard Pool, a consultant psychiatrist in independent practice, following an interview with the Appellant on 28 May 2009 and consideration of various documents.
The reportage given to Dr Pool by the Appellant is instructive. The Appellant described two acts of serious self-harm: one in about 1995, when she cut her wrists after she had fallen into contact with “the wrong type of people” (paragraph 8.6); and the second in about 2003, when she took an overdose after she found out that the father of her child had had an affair (paragraph 8.10). Neither incident was apparently related at all to difficulties resulting from her ethnicity or sexual orientation. When she was asked about her time in prison in Hungary, she said she had not coped well with that, but she did not harm herself because “there was no...
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