Zoltan Veres v Pécs Regional Court, Hungary

In an extradition case engaging Article 8 ECHR, the appellate court must ask whether the first-instance judge made the wrong decision on the evidence then available. It must respect the evaluative nature of the proportionality balance.

Fresh evidence is admissible only under the strict two-stage test in Fenyvesi: it must not reasonably have been available at the extradition hearing, and it must be sufficiently reliable and weight-bearing that it would have resulted in the requested person’s discharge. Evidence of serious family distress, unsupported by independent professional or institutional evidence and substantially dependent on interested family accounts, may be insufficient to reopen the balance.

The applicant appealed against a District Judge’s order for his extradition to Hungary to serve 3 years and 5 months of outstanding imprisonment for drug dealing and burglary-related offences. The District Judge rejected his Article 8 ECHR challenge after accepting evidence concerning the likely impact of extradition on his wife and four children, including a visually impaired child.

On appeal, the applicant sought to rely on two later reports from Dr Birch, a further witness statement, and a proposed social services report. The central issues were whether the District Judge’s original proportionality assessment was wrong and whether the later evidence satisfied the strict test for admission and justified a fresh Article 8 balance.

1. The original decision. The appeal was dismissed. Applying Celinski v Poland and Re B, the question was whether the District Judge’s decision was wrong, defective in law, unsupported by the facts, inadequately reasoned, or otherwise outside the range of decisions properly open to her. The District Judge was entitled to give substantial weight to the public interest in extradition, the applicant’s fugitivity, the seriousness of his offending, the sentence outstanding and the absence of culpable delay.
2. The District Judge was also entitled to weigh the family’s settled life, the wife’s hardship and the children’s vulnerability without treating those matters as determinative. Acceptance of Dr Birch’s evidence did not require the District Judge to decide the Article 8 balance in the applicant’s favour. The evidence could properly be accepted while being given limited or varying weight within the overall evaluative exercise.
3. Fresh evidence. The reports and witness statement had to satisfy the two-stage Fenyvesi test. The evidence had either to have been unavailable, or not reasonably obtainable, at the extradition hearing, and the court had to be satisfied that its admission would have produced a different result and the applicant’s discharge. The evidence did not satisfy the second limb.
4. The applicant’s statement could demonstrate his fears and add to the concerns raised by Dr Birch, but it could not establish that his wife was incapable of caring for the children or required psychiatric admission. Those matters required professional evidence. The court also declined to infer that the family lacked access to wider support.
5. Dr Birch’s later reports were equivocal in weight. The serious deterioration they described had left little objective trace in medical, educational or social-work records. The reports also depended heavily on parental accounts and did not sufficiently examine the family dynamic, the children’s vulnerability and suggestibility, or the litigation context. Those limitations reduced the weight that could be given to the evidence.
6. The children’s interests were a primary consideration, but neither the primary nor the paramount consideration. In the circumstances, and applying the guidance in Norris, HH and Palioniene, the impact of separation had to be appreciably more than the inevitable trauma of family separation before extradition could be avoided. The evidence did not meet that threshold. The applications to admit new evidence and to adjourn for a social services report were refused.

• District Judge Clarke: ordered extradition after a hearing on 21 July 2022, with written reasons dated 30 September 2022.
• High Court (Administrative Court): dismissed the appeal. The fresh evidence was refused under the Fenyvesi test, and the court held that its admission would not have altered the Article 8 proportionality outcome.