János Orsós v Dr Antal Gábor, Penitentiary Judge at the Pécs Regional Court, Hungary

In extradition proceedings, Article 8 requires a fact-sensitive balancing exercise. There is no separate exceptionality test, although the public interest in extradition is weighty and family-life interference will ordinarily need to be exceptionally severe before it outweighs that interest. Children’s interests are a primary consideration, but not the paramount consideration.

For Article 3, a Hungarian assurance guaranteeing at least 3m² of personal cell space remained sufficient on the evidence. General concerns about other prison conditions, monitoring by the General Ombudsman, or discriminatory attitudes towards Roma people did not establish a real risk requiring wider assurances. A late expert report was also a case-management matter within the district judge’s discretion.

The applicant sought renewal of his application for permission to appeal against an order for extradition to Hungary dated 13 December 2022. He had been sentenced to two years and nine months’ imprisonment for burglary, attempted burglary and theft.

The district judge rejected challenges based on alleged racial discrimination under Extradition Act 2003, delay, trial in absence, Article 3 prison conditions and Article 8 family life. Johnson J refused permission on the papers on 21 July 2023, while assuming for permission purposes that the proposed fresh evidence could be admitted.

The renewed application relied on further family, medical, expert and European human-rights material. The central issues were whether the fresh evidence made Article 8 incompatibility arguable, whether the Hungarian prison assurance was inadequate under Article 3, whether the expert report should have been admitted in full, and whether Roma heritage engaged section 13.

The renewed application for permission to appeal was dismissed.

1. Article 8. The court was required to assess the current evidence for itself. The governing approach, reflected in H(H) v Deputy Prosecutor of the Italian Republic, Genoa [2013] 1 AC 338, involved balancing the interference with the applicant’s and his family’s private and family lives against the public interest in extradition. There was no exceptionality test. The public interest was particularly weighty because the applicant was a fugitive, had admitted the offending and had a substantial sentence remaining. The impact on the family, pregnancy, children, mental health and delay did not reach the exceptionally severe level required to make extradition disproportionate.
2. Children’s interests were a primary consideration, but not the paramount consideration. The applicant was not the sole carer, and the impact on the family could be ameliorated by NHS, welfare and social-services support. Delay carried only modest weight because the applicant’s flight had prolonged the proceedings. Medical assertions without supporting expert evidence were also given limited weight.
3. Article 3. Detention below 3m² of personal space raised a strong presumption of a violation, applying Grecu v Cornetu Court [2017] EWHC 1427 (Admin). The Hungarian assurance guaranteeing at least 3m² remained legally sufficient. The line of authority considered in Nemeth [2022] EWHC 1024 (Admin), including the Supreme Court’s decision in Zabolotnyi v Mateszalka District Court, Hungary [2021] 1 WLR 2569, had rejected the need for assurances addressing wider prison conditions or expressly referring to the General Ombudsman. The evidence did not establish a general Article 3 risk, including for a Roma prisoner.
4. The General Ombudsman’s monitoring role derived from the Optional Protocol to the UN Convention against Torture and was independent of any particular assurance. The absence of an express monitoring reference did not itself establish an Article 3 violation. The court noted, but did not decide, whether prison authorities could guarantee monitoring by an independent Ombudsman.
5. Expert evidence and section 13. The district judge’s decision to admit the Article 3 portions of the late report but exclude the section 13 portions was a case-management decision within the proper bounds of discretion. Even assuming full admission, the evidence showed some discriminatory attitudes but did not support a reasonable chance, substantial grounds for thinking, or serious possibility that the applicant would be punished, detained or restricted in his liberty by reason of race.

• High Court (Administrative Court): Johnson J refused permission to appeal on the papers on 21 July 2023. On renewal, Mr Justice Julian Knowles dismissed the application and refused permission.
• District judge: Rejected the applicant’s extradition challenges based on discrimination, delay, trial in absence, Article 3 and Article 8, and ordered extradition to Hungary on 13 December 2022.