GS & Ors v Central District of Pest Hungary & Ors, Court of Appeal - Administrative Court, January 21, 2016, [2016] EWHC 64 (Admin)

Resolution Date:January 21, 2016
Issuing Organization:Administrative Court
Actores:GS & Ors v Central District of Pest Hungary & Ors
 
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Case No: CO/451/2015;

CO/3972/2015;

CO/1010/2015 &

CO/4789/2014

Neutral Citation Number: [2016] EWHC 64 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 21/01/2016

Before :

The Rt Hon LORD JUSTICE BURNETT

The Hon MR JUSTICE OUSELEY

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Between :

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Alex Bailin QC and Ben Cooper (instructed by Lawrence & Co Solicitors) for Appellant (1)

Alex Bailin QC and Mary Westcott (instructed by Noble Solicitors) for Appellant (2)

Alex Bailin QC and Natasha Draycott (instructed by S G K Solicitors) for Appellant (3)

Alex Bailin QC and James Stansfeld (instructed by Tuckers Solicitors) for Appellant (4)

Nick Hearn and Saoirse Townsend (instructed by CPS Extradition Unit) for the Respondent

Hearing date: 16th December 2015

Further material provided 6th and 12th January 2016

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JudgmentLord Justice Burnett:

  1. The four appeals before us have no connection save that in respect of each of the appellants an order for extradition to Hungary has been made by District Judges sitting at Westminster Magistrates' Court. The appellants' common ground of appeal is that their extradition to Hungary would violate their rights under article 3 of the European Convention on Human Rights (``the Convention'') and so is prohibited by section 21 of the Extradition Act 2003. Mr Bailin QC for the appellants submits that there is a real risk that, whether on remand in Hungary or following conviction, they would be detained in conditions that violate article 3 which prohibits torture and inhuman and degrading treatment. He relies upon the pilot judgment of the Strasbourg Court in Varga and others v Hungary (App. No. 14097/12 and others) to support that general submission. Judgment was delivered on 20 March 2015. There is no suggestion of ``torture'' or that the appellants' treatment would be ``inhuman''. The Strasbourg Court was concerned with prison conditions in Hungary which were degrading. On behalf of the Hungarian judicial authorities, Mr Hearn does not dispute that the judgment of the Strasbourg Court provides a sufficient foundation to enable the appellants to demonstrate, as things currently stand in the prison estate in Hungary, that the conditions in many penal establishments give rise to substantial grounds for believing that there would be a real risk of a violation of article 3 following extradition. However, he submits that the central concern of the Strasbourg Court related to the amount of space available to individual prisoners. On that question the Hungarian authorities have provided an assurance relating to the space each of these appellants would enjoy if incarcerated (and a list of others in respect of whom extradition requests have been made). He submits that the assurance can be relied upon and amounts to evidence which demonstrates that the appellants will be provided with the appropriate space.

  2. The issue before us is whether the assurance provides the necessary comfort to negate a conclusion that there are substantial grounds for believing that the appellants would face a real risk of treatment contrary to article 3 of the Convention if extradited to Hungary.

  3. In the appeal of GS there is a discrete ground of appeal relating to article 8 of the Convention. In the days immediately before the hearing of the appeal there were significant developments in her domestic circumstances which are the subject of official investigation. Without objection from the judicial authority we adjourned consideration of the article 8 aspect of her appeal. The fourth appellant, Zsolt Árpási, also pursued a ground of appeal relying upon article 8, on which we heard argument. Unlike the other three appellants, who have permission to appeal, Gyorgy Rafael's application for permission has not been considered by a single judge and comes before us as a rolled-up application. We grant him permission to appeal.

  4. The individual circumstances of each appellant do not bear upon the article 3 arguments. I do no more than outline them. GS, who is a Romanian national, is alleged to have committed an offence of child cruelty in November 2006. A European arrest warrant (``EAW'') was issued in February 2014 upon which she was arrested on 20 May 2015. Her extradition was ordered on 26 January 2015. András Ostrovszky is alleged to have been involved in large-scale smuggling of tobacco products. An EAW was issued on 23 May 2014. He was arrested on 16 October 2014 and his extradition was ordered on 23 February 2015. Gyorgy Rafael is sought by Hungary both in respect of offences for which he has been convicted (criminal damage and robbery) and on suspicion of two offences of affray. There were four EAWs, issued during 2014, on which he was arrested on 14 October 2014. His extradition was ordered on 14 August 2015. Zsolt Árpási was convicted of an offence similar to driving with excess alcohol committed on 20 November 2010. He was present in court when he was sentenced in 2011 to a custodial term of one year and two months, but not immediately taken into custody. He left the country having lodged an appeal. An EAW was issued on 27 August 2012. He was arrested on 4 November 2013 and his extradition ordered on 10 October 2014.

  5. Hungary is a member of the Council of Europe and also the European Union. It is category 1 territory for the purposes of the Extradition Act 2003. There is a rebuttable presumption that such countries will abide by their obligations under the Convention. It is common ground that the Varga decision rebuts the presumption with respect to article 3 and prison conditions in Hungary. In practical terms it is then for the requesting state to dispel the doubts that have arisen. It is also common ground that an assurance from the requesting state is capable of dispelling doubts about whether removal to that state would involve a violation of the Convention by the removing state: Othman (Abu Qatada) v United Kingdom (2012) 55 EHRR 1. Whether it does so requires a fact and circumstance specific inquiry.

  6. I have concluded that the assurance given by the Hungarian authorities, when considered against the decision of the Strasbourg Court in Othman, is sufficient to dispel those doubts. The extradition of these appellants to Hungary would not give rise to a violation of their rights under article 3 of the Convention. There are no substantial grounds for believing that there is a real risk that they will be subjected to treatment contrary to article 3 on account of such time as they may spend on remand or serving any sentence in Hungarian prisons.

    Varga

  7. Varga was concerned with six applicants who claimed that the conditions of their detention in Hungary violated article 3. The Strasbourg Court applied its pilot judgment scheme to the applications because there were about 450 similar outstanding claims. That scheme is codified in Rule 61 of the court's procedural rules. Rule 61(3) says that in the pilot judgment the court must ``identify both the nature of the structural or systemic problem or other dysfunction as established'' and it must ``identify the type of remedial measures which the Contracting Party concerned is required to take at the domestic level'' as a result of the judgment. That enables the court to examine a small number of representative cases. If they demonstrate a systemic failure the remaining cases may in effect be stayed whilst the government concerned agrees with the Committee of Ministers a package of reforms and improvements which will deliver speedy redress to others affected and to mitigate and then solve the underlying systemic problems.

  8. In addition to an examination of the complaints regarding the conditions in which each applicant was detained, the court was concerned with the adequacy of remedies in Hungary available to prisoners who wished to allege that prison conditions violated article 3 of the Convention. It found them wanting.

  9. There had been longstanding concerns about prison conditions in Hungary, in particular overcrowding, which were reflected in reports of the Hungarian Commissioner for Fundamental Rights and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment. They are discussed in detail between [31] and [38] of the judgment. In [73] to [78] the court reviewed its jurisprudence relating to ``extreme lack of space''. It referred to a substantial body of that jurisprudence which may be summarised as follows:

    a) Extreme lack of space weighs heavily in deciding whether conditions of detention are degrading [73].

    b) The relevant standard for space has regard to three elements: (i) each detainee must have his own sleeping space; (ii) each detainee must have available at least 3m2 of floor space; and (iii) the overall floor space must allow for free movement around furniture [74].

    c) Sometimes an extreme lack of space had resulted in a finding of a violation of article 3 without more [75].

    d) However, the court had refrained from determining for the purposes of the Convention a minimum amount of space because other relevant factors (e.g. period of detention, opportunities for exercise and association, the health of the detainee) play an important part in determining whether there has in fact been a violation of article 3 [76].

    e) The strong presumption of a violation on account of a lack of such space would be refuted by the cumulative effects of factors such as that the incarceration was short; there was freedom of movement within the establishment and unobstructed access to fresh air and light; and relatively lengthy periods of exercise or free movement [77].

    f) Conversely, even in cases where there appeared to be sufficient space (i.e. between 3m2 and 4m2) other aspects of...

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