Mykhailo Kozak v BUDA Central District Court, Hungary
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 27 January 2023 |
| Neutral Citation | [2023] EWHC 149 (Admin) |
| Docket Number | Case No: CO/1357/2021 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 149 (Admin)
THE HONOURABLE Mr Justice Dove
Case No: CO/1357/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Malcolm Hawkes (instructed by Taylor Rose) for the Appellant
Ms Miriam Smith (instructed by CPS Extradition Unit) for the Respondent
Hearing dates: 14 th December 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HONOURABLE Mr Justice Dove
This is the appeal against the decision of the Deputy Senior District Judge of 8 th March 2021 ordering the extradition of the Appellant to Hungary pursuant to a European Arrest Warrant (“EAW”) issued on 22 nd November 2018, and certified on 7 th December 2018. It is an accusation warrant and the Appellant's surrender is sought in relation to a single allegation described in the EAW in the following terms:
“On 9 th July 2015 an unknown person (ie the person “of unknown identity” but “known as Tibor Papp”) attended the Government Office of Budapest in District 20 and persuaded the clerk, who was acting as an official, to participate in issuing a false Hungarian Private Passport containing his photograph but the personal data of Tibor Papp. During the application, and for the purpose of recording false information in the passport, the person gave the clerk a naturalisation document certifying Hungarian citizenship and an official card certifying residence, both of which were issued to Tibor Papp. Based on these documents, the clerk recorded the false information with the photograph of the Applicant in the certified public records. Based on this passport application, the Hungarian Authorities proceeded to issue false passport number BH1578386 containing the photograph of the Applicant and the personal information of Tibor Papp”.
What the implication in the allegation of the use of the word “persuaded” may be has not been clarified. On any view, however, the Appellant and the Official in the Government Office of Budapest collaborated in order to issue a false passport to the Appellant in a false name.
This case has a complex procedural history, and has been very significantly delayed whilst awaiting cases being resolved in respect of aspects of the Appellant's case. It is unnecessary to delve into those matters in any great detail. It is however germane to note that the Appellant has been in custody since he was arrested under the EAW on 28 th September 2020. He has, therefore, been detained for over 2 year 3 months prior to the determination of this appeal. This has not been through the Appellant's choice. Bail applications have been made on the Appellant's behalf, but they have not met with any success leading to his continuing presence in custody on remand. After, as has been noted above, the case was significantly delayed by the pursuit of grounds which has ultimately proved to be fruitless the matter comes before the court following the amendment of the grounds and the grant of permission by Cavanagh J on 6 th July 2022. The amended grounds upon which Cavanagh J granted permission were that the Appellant was entitled to argue that his extradition would amount to a breach of section 21A of the Extradition Act 2003 on the basis of proportionality, as well as, secondly, a breach of article 8.
There is no dispute between the parties that the District Judge's consideration of the question of proportionality under section 21A of the 2003 Act was insufficient and inadequate, and therefore this aspect needs to be readdressed through remaking the decision in the context of this appeal. In any event, the time that has passed with the Appellant being on remand presents a very different picture to that which was before the District Judge. Again, it is common ground that if the Appellant succeeds in relation to his argument under section 21A of the 2003 Act then there will be no need for the court to go on to deal with the article 8 points. I propose therefore to address the arguments related to section 21A first. That the question of proportionality under section 21A requires separate assessment under the terms of the Extradition Act 2003 in relation to an accusation warrant is confirmed in the case of Miraszewski v Poland [2014] EWAC 4261 at paragraph 29.
The Appellant seeks permission to adduce evidence from Dr Huszti. I propose to consider Dr Huszti's evidence de bene esse and in the light of my assessment seek to establish whether it passes the relevant tests in relation to section 29(4) of the 2003 Act and the well-known case of Fenyvesi.
The requirements of proportionality under Section 21A of the 2003 Act are set out as follows:
“21A Person not convicted: Human Rights and Proportionality.
(1) If the judge is required to proceed under this section (by virtue of section 11), the judge must decide both of the following questions in respect of the extradition of the person (“D”) –
(a) whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998;
(b) whether the extradition would be disproportionate.
(2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account.
(3) These are the specified matters relating to proportionality –
(a) the seriousness of the conduct alleged to constitute the extradition offence;
(b) the likely penalty that would be imposed if D was found guilty of the extradition offence;
(c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.
(4) The judge must order D's discharge if the judge makes one or both of these decisions –
(a) that the extradition would not be compatible with the Convention rights;
(b) that the extradition would be disproportionate.”
The leading authority in relation to the application of Section 21A of the 2003 Act is Miraszewski which addressed the separate questions contained within Section 21A(3) as follows in the leading judgment of the Divisional Court given by Pitchford LJ:
“Subsection (3)(a) – seriousness of the conduct alleged
36. I have already considered the general approach to seriousness in paragraphs 30 – 33 above. Section 21A(3)(a) requires consideration of “the seriousness of the conduct alleged to constitute the extradition”. I agree that, as Mr Fitzgerald QC argued, paragraphs (a), (b) and (c) of subsection (3) all assume an approximate parity between criminal justice regimes in member states that embrace the principles of Articles 3, 5 and 6 of the ECHR and Article 49(3) of the Charter of Fundamental Rights of the European Union. In my view, the seriousness of conduct alleged to constitute the offence is to be judged, in the first instance, against domestic standards although, as in all cases of extradition, the court will respect the views of the requesting state if they are offered. I accept Mr Summers QC's submission that the maximum penalty for the offence is a relevant consideration but it is of limited assistance because it is the seriousness of the requested person's conduct that must be assessed. Mr Fitzgerald QC's identification of 7 years imprisonment as the maximum sentence for theft in England and Wales makes the point. Some offences of theft are trivial (see the Lord Chief Justice's Guidance); others are not. In my view, the main components of the seriousness of conduct are the nature and quality of the acts alleged, the requested person's culpability for those acts and the harm caused to the victim. I would not expect a judge to adjourn to seek the requesting state's views on the subject.
Section 21A(3)(b) – the likely penalty on conviction
37. Section 21A(3)(b) requires consideration of “the likely penalty that would be imposed if D was found guilty of the extradition offence”. Since what is being measured is the proportionality of a decision to extradite the requested person under compulsion of arrest, I consider that the principal focus of subsection (3)(b) is on the question whether it would be proportionate to order the extradition of a person who is not likely to receive a custodial sentence in the requesting state. The foundation stone for the Framework Decision is mutual respect and trust between member states. The courts of England and Wales do not treat as objectionable the possibility that sentence in the requesting state may be more severe than it would be in the UK. Raised in the course of argument was the case of a member state that imposed minimum terms of imprisonment for certain offences by reason of the particular exigencies of the crime in the territory of that state. Appropriate respect for the sentencing regime of a member state is required under subsection (3)(b); the UK has itself imposed minimum terms of custody as a matter of policy. However, in the extremely rare case when a particular penalty would be offensive to a domestic court in the circumstances of particular criminal conduct, it is in my view within the power of the judge to adjust the weight to be given to “the likely penalty” as a factor in the judgement of proportionality.
38. It would be contrary to the objectives of the Framework Decision to bring mutual respect and reasonable expedition to the extradition process if in every case the judge had to require evidence of the likely penalty from the issuing state. Furthermore, the more borderline the case for a custodial sentence the less likely it is that the answer would be of any assistance to...
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