Nikolics v The City Court of Szekszard (A Judicial Authority In Hungary)

In an extradition appeal under the Extradition Act 2003, an alleged error in a European arrest warrant engages abuse of process only where the statutory particulars are materially wrong or incomplete, the true correcting facts are clear beyond legitimate dispute, and the error matters to the statutory extradition decision. A confused factual account remains for the requesting court.

For section 13(b), “might” requires a reasonable chance, serious possibility or substantial grounds for thinking that discriminatory treatment may occur. Category 1 status creates an assumption that the requesting state will secure Convention and fundamental rights. That assumption can be displaced by cogent evidence, but general evidence of societal racism and constitutional concern did not establish the required risk of judicial discrimination.

The claimant appealed under section 26 of the Extradition Act 2003 against an order made by District Judge Zani at Westminster Magistrates’ Court on 20 May 2013 for his extradition to Hungary to face trial for theft.

He argued that the European arrest warrant contained inadequate or inaccurate particulars and that extradition was barred under section 13(b) because, as a Roma person, he might suffer discrimination at trial or in detention. The first argument was reformulated as abuse of process. The appeal also relied on further evidence concerning the treatment of Roma, judicial independence and political developments in Hungary.

The central questions were whether the alleged discrepancy was material to the extradition process and whether the evidence established the statutory risk contemplated by section 13(b).

1. Appeal dismissed. The alleged discrepancy between the warrant and later information did not justify an abuse-of-process inquiry. Applying Zakrzewski v Regional Courts in Lodz Poland [2013] 1 WLR 324, such an inquiry is confined to statutory particulars which are wrong or incomplete in a misleading way, where the true correcting facts are clear beyond legitimate dispute and the error is material to the statutory scheme. The allegation remained, in substance, that the claimant obtained a vehicle which was not his, in circumstances where payment was expected but was not intended. The precise sequence of events was confused and was for the Hungarian court. Removing the reference to payment by instalments would have had no material effect on extradition.
2. Section 13(b) required a real degree of likelihood, not mere possibility and not proof that the feared outcome was more likely than not. The applicable standard was that stated in Fernandez v Government of Singapore [1971] 1 WLR 987, and applied to section 13(b) in Hilali v Central Court of Criminal Proceedings number 5 [2006] EWHC 1239 Admin.
3. The court rejected the submission that the stringent “flagrant denial” approach developed in Convention removal cases governed section 13(b). That provision had a distinct and longer statutory history, although it could overlap with Convention arguments.
4. Hungary’s status as a category 1 territory and Convention state supported an assumption that its courts would try the claimant fairly, avoid racial discrimination and impose detention or punishment without racial bias. The assumption was rebuttable by cogent evidence. The material concerning Roma over-representation, racist attitudes, constitutional change and judicial independence raised genuine concerns, but it was old, tentative, general or insufficiently specific. The assurances from Hungary, safeguards in its judicial and appellate systems, the authorities’ previous decisions and the evidence of judicial correction of biased language outweighed it. The section 13(b) threshold was not met.

1. High Court (Administrative Court) — [2013] EWHC 2377 (Admin): Burnett J dismissed the appeal.
2. Westminster Magistrates’ Court — On 20 May 2013 District Judge Zani ordered extradition to Hungary.