Mykhailo Kozak v BUDA Central District Court, Hungary

In an accusation-warrant case, proportionality under section 21A of the Extradition Act 2003 requires separate consideration of the seriousness of the alleged conduct, the likely penalty and the availability of less coercive measures. The maximum foreign sentence is relevant but has limited weight. Where evidence of foreign sentencing practice is limited, the court may draw inferences from the warrant and use domestic sentencing practice as a measure of likelihood. A lengthy period on remand may carry very significant weight, particularly where it is likely to exceed any sentence that would be imposed domestically. The factors must be balanced in the particular circumstances. Serious conduct and the absence of suitable alternatives do not automatically make extradition proportionate.

The appellant appealed against a Deputy Senior District Judge’s decision of 8 March 2021 ordering his extradition to Hungary under an accusation European Arrest Warrant. The warrant concerned an allegation that he collaborated with a Hungarian public official to obtain a false passport in another person’s name.

Permission was granted to argue that extradition would be disproportionate under section 21A of the Extradition Act 2003 and incompatible with article 8. The parties agreed that the proportionality assessment below had been inadequate. The court therefore remade that assessment. The central question was whether extradition remained proportionate after the appellant had spent more than two years in custody on remand.

1. Appeal allowed. The District Judge’s decision was overturned and the appellant was to be discharged from the extradition proceedings.

2. Section 21A required separate assessment of the statutory proportionality matters. The seriousness of the conduct was to be assessed primarily by reference to the conduct alleged, rather than simply the maximum sentence. The involvement of a public official and the forgery of identity documentation made the alleged conduct potentially serious, although it was not at the highest end of criminal offending. The alleged use of the passport was not part of the conduct charged.

3. The maximum Hungarian sentence of five years was relevant but of limited assistance because it covered a broad range of offending. There was very limited evidence of Hungarian sentencing practice. Applying Miraszewski v Poland, the court could draw inferences from the warrant and use domestic sentencing practice as a measure of likelihood. The appellant had already spent on remand substantially more time than a domestic court was likely to impose for comparable offending. That factor therefore carried particularly significant weight.

4. Less coercive measures had been considered and rejected by the requesting authority. That factor weighed in favour of extradition, but did not determine the outcome.

5. The assessment was fact-sensitive. Balancing the seriousness of the conduct and the absence of suitable alternatives against the appellant’s lengthy detention and the likely sentence, extradition would be disproportionate. The expert evidence was unnecessary to the decision because the conclusion had already been reached without it, although it would have supported the result.

• High Court (Administrative Court): The appeal against the Deputy Senior District Judge’s extradition decision of 8 March 2021 was allowed. The decision was overturned and the appellant was discharged from the extradition proceedings.