Peter Bogdan v Judge of Law Enforcement at Veszprem Regional Court, Hungary
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 18 May 2022 |
| Neutral Citation | [2022] EWHC 1149 (Admin) |
| Docket Number | Case No: CO/3601/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1149 (Admin)
Mr Justice Julian Knowles
Case No: CO/3601/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Southey QC and Florence Iveson (instructed by JD Spicer Zeb) for the Applicant
James Hines QC and Amada Bostock (instructed by CPS) for the Respondent
Hearing dates: 29 March 2022
Approved Judgment
Introduction
This is a renewed application for permission to appeal against the order for the Applicant's extradition to Hungary following refusal on the papers by the single judge. The Applicant's extradition was ordered by District Judge Rimmer on 15 October 2021. His extradition has been requested pursuant to an EAW issued by the Respondent in 2018 so that he can serve a sentence of imprisonment imposed in 2016 for a total of 21 offences including human trafficking, theft and robbery. The offences were committed with his late partner, Anna Lakner. The offences were committed between October 2007 and November 2009.
The Applicant was arrested before 11pm on 31 December 2020 and so the EA 2003 in its unamended form and the Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between member states of the European Union (the EAW Framework Decision) continue to apply: see Zabolotnyi v The Mateszalka District Court, Hungary [2021] 1 WLR 2569, [2]–[3]; R (Polakowski) v Westminster Magistrates' Court [2021] 1 WLR 2521, [19]–[24], [32].
According to the EAW, the Applicant and his late partner (and others) targeted vulnerable individuals with access to state benefits or allowances from their families and promised them a home. They persuaded the victims to hand over their allowances and/or benefits and took their bank cards and personal documents. The Applicant and his partner forced their victims to live in disused flats with no heating, no drinking water, no electricity, no toilets, no cooking or washing facilities and with poor doors and windows. They gave the victims their leftover food but frequently they went hungry. The victims were both physically and verbally assaulted and had their freedom of movement severely restricted. The victims were also threatened and forced to commit thefts for the benefit of the Applicant and his partner and also to work in their home for no pay.
The Applicant's offences are ‘common or garden’ criminal offences with no political element whatsoever. They are plainly very serious. He was present at his trial in 2016 and was sentenced to seven years' imprisonment, of which four years and one month remain to be served.
There are two grounds of appeal, namely: (a) the District Judge erred in finding extradition would be a proportionate interference with the Applicant's private and family life and therefore that extradition was not barred by s 21 of the Extradition Act 2003 (EA 2003), read with Article 8 of the European Convention on Human Rights (the Convention); (b) the District Judge erred in finding the EAW in this case was a valid warrant within the meaning of s 2 of the EA 2003.
With regards to the Article 8 ground, the Applicant was granted funding in order to instruct a psychiatric expert and that ground has been stayed. I am therefore only concerned with the second ground of appeal on this application.
The second ground of appeal concerns legislative changes in Hungary which, it is said, have undermined judicial independence and the rule of law to such an extent that Hungarian judges responsible for issuing EAWs can no longer be regarded as judicial authorities for the purposes of s 2 of the EA 2003 and Article 6 of the EAW Framework Decision, and hence that the EAW in question cannot form the basis of extradition. For the same reason it is said the Applicant would be the victim of a flagrant denial of justice and thus that his extradition is barred by s 21 of the EA 2003 read with Article 6 of the Convention.
Background: the Polish ‘rule of law’ cases
These grounds of appeal mirror the grounds argued in Wozniak v Circuit Court in Gniezno, Poland [2021] EWHC 2557 (Admin), Lis and others v Regional Court in Warsaw, Poland [2018] EWHC 2848 and Lis and another v Regional Court in Warsaw, Poland (No 2) [2019] EWHC 674 (Admin), in relation to Poland.
Wozniak considered the position in Poland up to July 2021. It was argued that legislative changes promoted by the governing Law and Justice Party had undermined judicial independence and the rule of law in Poland so that Polish EAWs no longer provided a lawful basis for extradition. The Divisional Court (Dame Victoria Sharp, P, and Julian Knowles J) dismissed the Appellants' appeals and refused their application for certificates of law of general public importance under s 32(4) of the EA 2003, thereby foreclosing an appeal to the Supreme Court. The judgment in Wozniak, which was handed down on 23 September 2021, should be read alongside this judgment.
Wozniak and the earlier domestic decisions considered the judgments of the CJEU in Criminal proceedings against LM [2019] 1 WLR 1004 (July 2018) and L and P (Joined Cases C-354/20 PPU and C-412/20 PPU) (December 2020), which had considered developments in Poland and their potential effect on the EAW scheme.
In summary, at [52] of LM the CJEU said that each Member State must ensure that the courts and tribunals ‘within its judicial system in the fields covered by EU law meet the requirements of effective judicial protection’. The independence of courts and tribunals ‘is essential to ensure that protection’ ([53–54]). The requirement of independence attaches to the judicial body issuing an EAW, as well as the body executing such a warrant ([56]). The high level of trust between Member States, on which the EAW system rests, is founded on the premise that criminal courts of the other States ‘meet the requirements of effective judicial protection’ ([58]).
The Court went on:
“59. It must, accordingly, be held that the existence of a real risk that the person in respect of whom a European arrest warrant has been issued will, if surrendered to the issuing judicial authority, suffer a breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial, a right guaranteed by the second paragraph of Article 47 of the [EU Charter of Fundamental Rights], is capable of permitting the executing judicial authority to refrain, by way of exception, from giving effect to that European arrest warrant, on the basis of Article 1(3) of [the EAW Framework Decision].
60. Thus, where, as in the main proceedings, the person in respect of whom a European arrest warrant has been issued, pleads, in order to oppose his surrender to the issuing judicial authority, that there are systemic deficiencies, or, at all events, generalised deficiencies, which, according to him, are liable to affect the independence of the judiciary in the issuing Member State and thus to compromise the essence of his fundamental right to a fair trial, the executing judicial authority is required to assess whether there is a real risk that the individual concerned will suffer a breach of that fundamental right, when it is called upon to decide on his surrender to the authorities of the issuing Member State (see, by analogy, judgment of 5 April 2016, Aranyosi and Caldararu, C-404/15 and C-659/15 PPU, EU:C:2016:198, paragraph 88).”
The following points emerge from these paragraphs (see Lis No 1 at [36]):
a. ‘systemic … or … generalised deficiencies’ in connection with independence of the judiciary are not enough, without more, to prevent extradition;
b. where such deficiencies are relied upon by the individual, the executing judicial authority must assess in respect of that person whether there is a real risk of a ‘breach’ or ‘compromise’ of the ‘essence of his fundamental right to a fair trial’;
c. the focus is therefore on whether the individual concerned, given the nature of the proceedings which he faces on return, faces a substantial risk of being denied the essence of his fundamental right to a fair trial.
The CJEU then further explained its two-stage test derived from Aranyosi.
The first step is to assess whether there are systemic or generalised deficiencies, by reference to the second paragraph of Article 47 of the Charter. This step must be conducted by reference to two aspects: the first, which the Court said was ‘external in nature’, concerns the functional or structural autonomy of the courts and their freedom from external interventions [63–64]. The second aspect, referred to by the Court as ‘internal in nature’, concerns impartiality, objectivity and the absence of ‘any interest in the outcome of the proceedings apart from the strict application of the rule of law’ [65].
The Court said that each aspect must be guaranteed by rules governing: the composition of the court; terms of service; appointment and dismissal; conduct and discipline of judges [66]. The requirement of independence also means that the disciplinary regime governing those who have the task of adjudicating in a dispute must display the necessary guarantees in order to prevent any risk of its being used as a system of political control of the content of judicial decisions [67].
At [68] the Court added that:
“68. If, having regard to the requirements noted in paragraphs 62 to 67 of the present judgment, the executing judicial authority finds that there is, in the issuing Member State, a real risk of breach of the essence of the fundamental right to a fair trial on account of systemic or generalised deficiencies concerning the judiciary of that Member State, such as to compromise the...
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