CSABA NEMETH v HUNGARIAN JUDICIAL AUTHORITIES

A stay of permission-to-appeal applications requires a sufficient legal or factual overlap with the pending issue, or another compelling reason. General themes, such as effective judicial protection and the rule of law, do not establish a sufficient overlap where the issues arise under different legal standards.

Under section 12A of the Extradition Act 2003, the requested person must show reasonable grounds for believing that neither the relevant decision to charge or try has been made nor that absence from the requesting state is the sole reason for the failure. Evidence must be assessed in the overall context of the European arrest warrants. The absence of specific further information is not probative where the requesting state was never asked the relevant question.

The judgment concerned four linked extradition cases involving Hungarian European arrest warrants. It followed an earlier judgment, [2021] EWHC 3366 (Admin), and addressed whether applications for permission to appeal on issues concerning delay, alleged ill-treatment of Roma detainees, prison conditions and judicial independence should be stayed pending the outcome of Bogdan.

The court also considered section 12A grounds advanced by Csaba Nemeth and Maria Lakatos. Their argument was that the warrants and further information gave reasonable grounds to believe that decisions to prosecute had not been made, and that absence from Hungary was not the sole reason for that position.

1. Stay applications. The court refused to stay the applications for permission to appeal concerning endemic delays, alleged ill-treatment of detained persons of Roma ethnicity, prison conditions, floorspace assurances and supervision. The issues in Bogdan concerned the meaning of a judicial authority under section 2 of the Extradition Act 2003 and the possible direct implications of compromised judicial independence. The further matters engaged Articles 3, 5 and 6 ECHR and did not disclose a sufficient overlap or other reason for awaiting Bogdan (paras [4]-[10]).
2. The general concept of effective judicial protection did not justify a stay. Nor did references to the rule of law establish the necessary connection. The relevant materials did not link the asserted delays, Roma ill-treatment or prison assurances to compromised judicial independence. Concerns about the independence of the Equal Treatment Authority and Ombudsman were not concerns about judicial independence (paras [8]-[10]).
3. Section 12A. The statutory question under section 12A(1)(a) has two limbs: whether there are reasonable grounds for believing that the competent authorities have not decided to charge or try the requested person, and whether the person’s absence is not the sole reason for that failure. The issue at this stage was whether the proposed grounds were reasonably arguable, not whether the court should finally determine the merits (paras [12]-[14]).
4. The judge below was not arguably wrong. The warrants had to be assessed as a group and in their overall context. An unamended preamble did not create incoherence or establish the absence of a prosecutorial decision. General references to investigation or suspicion were materially weakened because the same language appeared in warrants accepted to involve decisions to prosecute (paras [13]-[15]).
5. An inference from the absence of an explicit answer was available only if the requesting state had been asked the relevant question. The requesting state accepted a duty of candour to disclose any such question and an adverse answer. Since no such question had been asked for the warrants in issue, the absence of specific further information was benign and could not discharge the evidential onus. The section 12A ground therefore had no reasonable prospect, and the second limb did not arise (paras [16]-[19]).

• High Court (Administrative Court): In the present second judgment, the court refused stays concerning proposed appeals and held that the section 12A grounds in the Nemeth and Lakatos cases were not reasonably arguable.
• Earlier judgment: The proceedings had previously been addressed in [2021] EWHC 3366 (Admin). The judgment under appeal was the District Judge’s extradition decision of 8 April 2021, but no citation for it was stated.