Tibor Jozsa v Tribunal of Szekesfehervar, Hungary
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 10 October 2023 |
| Neutral Citation | [2023] EWHC 2404 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4641/2022 |
[2023] EWHC 2404 (Admin)
Mr Justice Julian Knowles
Case No: CO/4641/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Catherine Brown (instructed by Sonn Macmillan Walker) for the Appellant
David Ball (instructed by CPS) for the Respondent
Hearing date: 18 January 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 10 October 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is an appeal with permission (granted by myself, as it happens) against the judgment of District Judge Goozée dated 20 November 2019 ordering the Appellant's extradition to Hungary.
The Appellant was arrested before 11pm on 31 December 2020 and so the Extradition Act 2003 (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 Mateszalka District Court, Hungary [2021] 1 WLR 2569, [2]–[3]; R (Polakowski) v Westminster Magistrates' Court [2021] 1 WLR 2521, [19]–[24], [32].
This case has a long history:
| 6 August 2015 | Date of the assault detailed in the European Arrest Warrant (EAW) on which return is now sought (EAW 1). |
| c.2016 | Appellant came to UK; Hungarian proceedings still ongoing. |
| 14 November 2017 | Appellant convicted of assault in Hungary and sentenced to one year of imprisonment (this decision became final on 13 December 2018 following the decision of the Szekesfehervar Regional Court). |
| 11 August 2019 | Appellant arrested in the UK in respect of the original version of EAW 1 (that version was issued in error as an accusation EAW, see [4] of the District Judge's judgment). The Appellant was discharged in respect of that accusation EAW on the morning of the full extradition hearing (see below). |
| 12 August 2019 | The initial hearing took place. The Appellant did not raise issues pursuant to ss 4 or 7 of the EA 2003. He did not consent to his extradition. The proceedings were formally opened and the Appellant was remanded in custody. |
| 22 October 2019 | The final extradition hearing was listed before District Judge Goozée. It was brought to his attention that the EAW had been incorrectly issued as an accusation warrant. Consequently, he adjourned the extradition hearing in order for this issue to be resolved (judgment at [15]) |
| 30 October 2019 | The current version of the EAW issued in Hungary. |
| 6 November 2019 | Current version of EAW 1 certified. The Appellant was arrested at court pursuant to it. The initial hearing took place, preliminary issues were resolved and the Appellant was discharged in respect of the original version of the EAW. The extradition hearing took place. The Appellant raised the following issues in opposition to his extradition: s 20; Article 3 of the European Convention on Human Rights (ECHR); and Article 8. |
| 20 November 2019 | Appellant's extradition ordered by District Judge Goozée. |
| 25 November 2019 | Appellant's Notice filed and served. |
| 5 April 2020 | Appellant granted conditional bail. The Appellant's case was stayed behind Zabolotnyi. Following the hand down of judgment in that case on 30 April 2021, the Appellant was asked to confirm whether he maintained the Article 3 argument. |
| 10 December 2021 | Decision of Sir Ross Cranston which stayed the s 2/Article 6 ECHR (rule of law) ground of appeal behind Bogdan v Judge of Law Enforcement at Veszprem Regional Court, Hungary [2022] EWHC 1149 (Admin) and refused permission to appeal in respect of Article 8 ECHR and proportionality pursuant to section 21A of the 2003 Act. |
| 16 December 2021 | The renewal application was lodged and the decision from Dr Tamas Racz, Head of the Traffic Police Division of 13 December 20215 relating to the discontinuance of the prosecution relating to a second EAW with reference 33.Bny.625/2017/2 (EAW 2) was served (see below re the offences on EAW 2). |
| 22 March 2022 | The Hungarian Ministry of Justice (MOJ) wrote to the CPS to state that the withdrawal of EAW 2 was proposed. Furthermore, the MOJ sought clarification as to whether the Appellant had been held in detention or under house arrest beyond the period 11 August 2019 to 15 April 2020. |
| 29 March 2022 | MOJ provided a further response from the Respondent which stated that the Appellant had served the ‘minimum period for being released on parole’ but that release on parole ‘may be allowed only by the penitentiary judge based on the submission of the penitentiary institute being the place of detention in Hungary. Consequently, the request for the Appellant's extradition was maintained. |
| 30 March 2022 | The Respondent stated that EAW 2 was to be withdrawn, and he was subsequently discharged in respect of that warrant. |
| 12 April 2022 | Permission to appeal was granted by Julian Knowles J in respect of Article 8 ECHR on EAW 1. |
| 18 May 2022 | Judgment handed down in Bogdan. |
Both of the appeals behind which this case was stayed were resolved adversely to the defendants. Hence, the only issue now outstanding is whether extradition would be a disproportionate interference with the Appellant's rights under Article 8 of the ECHR, and so barred by s 21 of the EA 2003.
The facts
EAW 1, on which the Appellant's extradition is sought, has the reference Szv 1132/2018. It concerns an offence of assault.
The offence was committed on 6 August 2015 when the Appellant got into an argument in a pub with the complainant. The Appellant was intoxicated. After the complainant left the pub, the Appellant followed him with another (unidentified) person, caught up with him, and punched him to the ground. The Appellant's accomplice then kicked the complainant on the floor, whilst the Appellant punched him to the face several more times.
The complainant suffering fractured ribs and a dislocation and contusion of his jaw, the injuries taking more than eight days to heal. The Framework list for grievous bodily injury has been ticked.
On any view this was a nasty assault, although – at least to English eyes – the sentence might appear to have been comparatively lenient.
The Appellant was arrested and questioned about the assault. He admitted it. He was told that he would have to go to court. He did not do so. He came to the UK in 2016 whilst the proceedings were still ongoing in Hungary. The district judge therefore found him to be a fugitive on the basis that by leaving Hungary he had deliberately placed himself beyond the reach of the Hungarian authorities (at [49]). The district judge disbelieved much of the Appellant's evidence about what he had done and why (eg, that he had had contact with the Hungarian authorities). Realistically, before me Ms Brown on behalf of the Appellant did not challenge the finding that the Appellant is a fugitive.
The Appellant was convicted by Szekesfehervar District Court on 14 November 2017. He appealed, however the conviction was upheld by Szekesfehervar Regional Court on 13 December 2018 and the conviction became final on that date.
EAW 2 contained an allegation of an offence against transport security and another allegation of harassment. It was alleged that the Appellant had intentionally endangered life by pulling on the handbrake and trying to pull out the ignition key whilst he was travelling in a moving car and then also threatened to kill the woman driver and her family. These carried maximum sentences of 3 years and 2 years respectively. That warrant was withdrawn in March 2022.
The common ground
A number of things are common ground.
Firstly, the Appellant spent eight months on remand in custody in the UK between his arrest in August 2019 and his release on bail in April 2020. (Unusually, he was released on bail after the extradition order had been made because of concerns about his mental health). That time will fall to be deducted from the one year sentence of imprisonment in Hungary. Hence, there will be a maximum of about four months of his sentence left to serve if he is extradited.
Second, given that comparatively short period, he will be able to apply to a Hungarian judge (known as a ‘penitentiary judge’) immediately on his return for parole, and so may not actually serve any time at all. However, Further Information from Hungary dated 29 March 2022 makes clear that that application has to be made once he is back in Hungary.
Third, significant time has passed since he was released on bail during which his liberty has been significantly restricted because he has been subject to an electronically monitored curfew from 7pm – 7am every day.
Fourth, at the time of the district judge's decision, and when the single judge refused permission on the papers, EAW 2 was extant. It was relied on by the district judge and the single judge as an additional reason for rejecting the Appellant's Article 8 argument besides the assault offence. However, that warrant has now been withdrawn, the Appellant no longer faces extradition in respect of it, and so the position has changed in that respect.
The test on appeal
I can only allow the appeal if the district judge should have discharged the Appellant under Article 8: see s 27(3), EA 2003.
The matters I set out earlier mean that the question for me is not whether the district judge was wrong, which is the general test on appeal: see Love v Government of the United States of America [2018] EWHC 172 (Admin), [22]–[26]. Given this is a change of circumstances/fresh evidence case, I have to make my own assessment de novo, on the material...
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