CSABA NEMETH & Ors v HUNGARIAN JUDICIAL AUTHORITIES

In extradition cases, an operative presumption of ECHR compliance is displaced only by clear and cogent evidence of a real risk of a flagrant denial of Article 5 or Article 6 rights. Numerous findings of ordinary delays or excessive detention may demonstrate prevalence, but they do not cumulatively become a flagrant breach; aggregation concerns deficiencies in the individual’s own trial. A civil-proceedings pilot judgment does not establish a corresponding criminal-justice risk, particularly where legislative and remedial changes are relevant. Hungarian assurances guaranteeing at least 3m² of personal space and monitoring by the General Ombudsman remained sufficient for Article 3. Evidence concerning other prison conditions, monitoring shortcomings and Roma discrimination did not make broader assurances reasonably arguable.

Three requested persons sought permission to appeal District Judge Fanning’s judgment of 8 April 2021 in extradition proceedings to Hungary. The proposed grounds concerned alleged endemic delays creating a real risk of a flagrant denial of Article 5 and Article 6 rights, and alleged inadequacy of prison assurances guaranteeing at least 3m² of personal space and monitoring by the General Ombudsman. The requested persons also relied on their Roma ethnic origin and putative fresh evidence. The central questions were whether any challenge was reasonably arguable and whether the fresh material could be decisive.

Articles 5 and 6

1. Permission refused. The court applied the operative presumption of ECHR compliance, the requirement for clear and cogent evidence to displace it, and the flagrant breach threshold identified by reference to Agius v Malta [2011] EWHC 759 (Admin).
2. The European Parliament Resolution and the Gazsó v Hungary (48322/12) Pilot Judgment concerned wider rule-of-law or civil-proceedings matters. They did not identify a systemic threat concerning criminal-trial delay or excessive pre-trial detention. The absence of a Strasbourg Pilot Judgment in that criminal context, the 2018 Hungarian Criminal Procedure Code and other remedial steps were material.
3. Repeated Strasbourg findings, including Barta and Drajko v Hungary (35729/12), Lakatos v Hungary (21786/15), Hadobas & 4 Others v Hungary (44841/20), and the Gabor & 14 Others and Milak & 10 Others cases, showed recurring ordinary violations. They did not cumulatively establish a future flagrant breach. Popoviciu v Romania [2021] EWHC 1584 (Admin) concerned aggregation of deficiencies in the individual’s trial, rather than aggregation of separate cases.
4. The evidence concerning discrimination against Roma people did not link that discrimination to a real risk of flagrant denial of Article 5 or Article 6 rights in the requested persons’ proceedings.

Article 3 and prison assurances

5. The established domestic approach, beginning with GS v Hungary [2016] EWHC 64 (Admin) and continuing through Fuzesi v Budapest-Capital Regional Court, Hungary [2018] EWHC 1885 (Admin), Szalai & Zabolotnyi v Hungary [2019] EWHC 934 (Admin) and Zabolotnyi v Hungary [2021] UKSC 1, remained applicable. Assurances guaranteeing at least 3m² of personal space and monitoring by the General Ombudsman remained legally sufficient.
6. The court recognised the significance of other detention conditions and the possibility, identified in Mursic v Croatia (2017) 65 EHRR 1, that conditions may combine with personal space between 3m² and 4m² to breach Article 3. The CPT report, Committee of Ministers’ materials, domestic authorities and Strasbourg decisions did not, however, establish a general Article 3 risk requiring broader or more specific assurances.
7. The evidence concerning the General Ombudsman’s resources, inspections and institutional effectiveness involved concerns already considered in the earlier authorities. No material factual change or specific failure to monitor the 3m² assurances was shown. Roma ethnic origin likewise did not establish an Article 3 risk.
8. Permission to appeal was refused on all grounds. The putative fresh evidence was incapable of being decisive, and permission to rely on it was formally refused.

• High Court (Administrative Court): refused permission to appeal and formally refused permission to rely on putative fresh evidence.
• District Judge Fanning: on 8 April 2021 found against the requested persons on each of the four proposed points.