PETER BOGDAN v JUDGE OF LAW ENFORCEMENT AT VESZPREM REGIONAL COURT, HUNGARY

In extradition proceedings under the Extradition Act 2003, systemic or generalised deficiencies affecting judicial independence do not, without more, invalidate an European arrest warrant or require refusal of surrender.

The court must apply the two-stage approach in Aranyosi and LM. It must first assess whether objective and reliable material establishes systemic or generalised deficiencies creating a real risk to judicial independence. It must then assess specifically and precisely whether the requested person faces a real risk that the essence of the right to a fair trial will be breached, having regard to the person’s situation, the offence and the factual context.

Permission to appeal may exceptionally be granted to facilitate consideration by a higher court, but a sound and proper basis is required.

The applicant sought renewal of an application for permission to appeal against an order made by District Judge Rimmer on 15 October 2021 for his extradition to Hungary. The extradition request concerned enforcement of a 2016 sentence for 21 offences, including human trafficking, theft and robbery.

The applicant argued that legislative and institutional developments in Hungary had undermined judicial independence. He contended that the issuing Hungarian judge could not be treated as a judicial authority under section 2 of the Extradition Act 2003, and that surrender would create a real risk of a flagrant denial of justice contrary to Article 6 of the Convention.

The Article 8 ground was stayed. The issue was whether the rule-of-law ground was arguable and whether permission should nevertheless be granted to facilitate a possible appeal to the Supreme Court.

1. Renewed application dismissed. The Article 8 application remained to be determined.
2. The court followed Wozniak v Circuit Court in Gniezno, Poland [2021] EWHC 2557 (Admin) on the arguments that systemic deficiencies could remove the status of an issuing judicial authority, and that a general rule-of-law deterioration could itself establish a real risk of a flagrant denial of justice.
3. The applicable test was the two-stage approach derived from Aranyosi and Caldararu [2016] QB 921 and Criminal proceedings against LM [2019] 1 WLR 1004. Stage 1 concerns systemic or generalised deficiencies affecting judicial independence. Stage 2 requires a specific and precise assessment of whether the individual requested person faces a real risk that the essence of the right to a fair trial will be breached.
4. The judge was prepared to assume, for the purpose of argument, that Stage 1 was satisfied. The European Commission’s Reasoned Proposal concerning Hungary provided substantial material indicating systemic concerns. That did not establish the applicant’s individual risk.
5. At Stage 2, the applicant relied on general evidence and could not identify evidence that the judges involved in issuing or administering his sentence were, or would be, affected. The District Judge’s adverse factual findings were open to him and there was no basis to interfere with them. The applicant had already been tried, convicted and sentenced for ordinary criminal offences without a political or sensitive context.
6. As the applicant would not face a trial on return, Article 6 of the Convention did not apply to the extradition decision on the facts of the case.
7. There may be cases where a lower court grants permission despite an appeal being likely to fail, to facilitate consideration by a higher court. Such a course requires a sound and proper basis. The mere possibility that the Supreme Court might reconsider settled CJEU authority was insufficient.

• High Court (Administrative Court): the renewed application for permission to appeal was dismissed. The Article 8 ground remained stayed.
• District Judge Rimmer: ordered extradition on 15 October 2021 after rejecting the rule-of-law and judicial-independence arguments.
• Single judge: refused permission on the papers on 17 January 2022.