Agardi v Penitentiary Judge of the Metropolitan Court, Budapest, Hungary

The High Court has no general jurisdiction to extend the statutory seven-day period for appealing an extradition order under section 26(4) of the Extradition Act 2003. The exceptional-circumstances jurisdiction recognised for British citizens does not extend to non-British nationals, including EU nationals, because extradition does not determine a civil right protected by Article 6(1) of the ECHR. Article 14 therefore provides no additional protection. Article 3 and the Human Rights Act 1998 do not create a procedural right to appeal out of time. EU-law arguments based on Article 18 TFEU and Article 47 of the Charter also fail where section 26(4) does not implement EU law.

Hungary sought the surrender of the applicant, a Hungarian national, under a conviction European Arrest Warrant. Following a full extradition hearing, the District Judge rejected his objections under Articles 3 and 8 of the ECHR and ordered surrender. The applicant wished to appeal, but the notice was lodged three days outside the seven-day period in section 26(4) of the Extradition Act 2003.

The case was treated as a test case on whether the High Court could extend time for a non-British EU national relying on an Article 3 objection. The subsidiary issue was whether, assuming such a power existed, the circumstances justified an extension.

The court dismissed the appeal for want of jurisdiction.

1. Statutory jurisdiction. Section 26(4) imposed a strict time limit. The court was bound by Mucelli v Government of Albania; Moulai v Deputy Public Prosecutor de Creteil, France [2009] 1 WLR 276 and Pomiechowski v District Court of Legnica, Poland; Halligen v Secretary of State for the Home Department [2012] 1 WLR 1604. Those authorities did not create a general power to extend time under Part 1.
2. Article 6 and Article 14. Halligen established that Article 6(1) applied to extradition proceedings involving a British citizen because they determined that citizen’s common-law right to enter, remain in and leave the United Kingdom. A non-British citizen did not possess that right. Such a person was therefore not in an analogous legal position, and Article 14 did not apply. The court followed Lumenica v Government of Albania [2012] EWHC 2589 (Admin) and the related Administrative Court authorities.
3. Article 3 and domestic human-rights duties. Both British and non-British persons could raise Article 3 before the District Judge and, if in time, on appeal. The difference concerned only the procedural protection arising from Article 6(1). Sections 3(1) and 6(1) of the Human Rights Act 1998 did not require section 26(4) to be read as permitting an out-of-time appeal.
4. EU law. Article 18 TFEU and Articles 47, 51(1) and 52(3) of the Charter did not assist the applicant. Section 26(4) was domestic legislation and did not implement the Framework Decision. Following Assange v Swedish Prosecution Authority [2012] 2 AC 471, the pre-Lisbon Framework Decision was outside section 2 of the European Communities Act 1972. The contrary reasoning in Criminal Proceedings against Lopes da Silva Jorge [2013] QB 283 was not binding in England.
5. Alternative merits. Even if an exceptional-circumstances power existed, the solicitor’s serious failure to ascertain the District Judge’s decision and comply with the time limit was not exceptional. The applicant’s personal lack of fault did not suffice.

The judgment describes the District Judge’s extradition decision but gives no citation for it. The High Court dismissed the appeal for want of jurisdiction.