GS & Ors v Central District of Pest Hungary & Ors

The four appeals before us have no connection save that in respect of each of the appellants an order for extradition to Hungary has been made by District Judges sitting at Westminster Magistrates’ Court. The appellants’ common ground of appeal is that their extradition to Hungary would violate their rights under article 3 of the European Convention on Human Rights (“the Convention”) and so is prohibited by section 21 of the Extradition Act 2003. Mr Bailin QC for the appellants submits that there is a real risk that, whether on remand in Hungary or following conviction, they would be detained in conditions that violate article 3 which prohibits torture and inhuman and degrading treatment. He relies upon the pilot judgment of the Strasbourg Court in Varga and others v Hungary (App. No. 14097/12 and others) to support that general submission. Judgment was delivered on 20 March 2015. There is no suggestion of “torture” or that the appellants’ treatment would be “inhuman”. The Strasbourg Court was concerned with prison conditions in Hungary which were degrading. On behalf of the Hungarian judicial authorities, Mr Hearn does not dispute that the judgment of the Strasbourg Court provides a sufficient foundation to enable the appellants to demonstrate, as things currently stand in the prison estate in Hungary, that the conditions in many penal establishments give rise to substantial grounds for believing that there would be a real risk of a violation of article 3 following extradition. However, he submits that the central concern of the Strasbourg Court related to the amount of space available to individual prisoners. On that question the Hungarian authorities have provided an assurance relating to the space each of these appellants would enjoy if incarcerated (and a list of others in respect of whom extradition requests have been made). He submits that the assurance can be relied upon and amounts to evidence which demonstrates that the appellants will be provided with the appropriate space.

The issue before us is whether the assurance provides the necessary comfort to negate a conclusion that there are substantial grounds for believing that the appellants would face a real risk of treatment contrary to article 3 of the Convention if extradited to Hungary.

In the appeal of GS there is a discrete ground of appeal relating to article 8 of the Convention. In the days immediately before the hearing of the appeal there were significant developments in her domestic circumstances which are the subject of official investigation. Without objection from the judicial authority we adjourned consideration of the article 8 aspect of her appeal. The fourth appellant, Zsolt Árpási, also pursued a ground of appeal relying upon article 8, on which we heard argument. Unlike the other three appellants, who have permission to appeal, Gyorgy Rafael’s application for permission has not been considered by a single judge and comes before us as a rolled-up application. We grant him permission to appeal.

The individual circumstances of each appellant do not bear upon the article 3 arguments. I do no more than outline them. GS, who is a Romanian national, is alleged to have committed an offence of child cruelty in November 2006. A European arrest warrant (“EAW”) was issued in February 2014 upon which she was arrested on 20 May 2015. Her extradition was ordered on 26 January 2015. András Ostrovszky is alleged to have been involved in large-scale smuggling of tobacco products. An EAW was issued on 23 May 2014. He was arrested on 16 October 2014 and his extradition was ordered on 23 February 2015. Gyorgy Rafael is sought by Hungary both in respect of offences for which he has been convicted (criminal damage and robbery) and on suspicion of two offences of affray. There were four EAWs, issued during 2014, on which he was arrested on 14 October 2014. His extradition was ordered on 14 August 2015. Zsolt Árpási was convicted of an offence similar to driving with excess alcohol committed on 20 November 2010. He was present in court when he was sentenced in 2011 to a custodial term of one year and two months, but not immediately taken into custody. He left the country having lodged an appeal. An EAW was issued on 27 August 2012. He was arrested on 4 November 2013 and his extradition ordered on 10 October 2014.

Hungary is a member of the Council of Europe and also the European Union. It is category 1 territory for the purposes of the Extradition Act 2003. There is a rebuttable presumption that such countries will abide by their obligations under the Convention. It is common ground that the Varga decision rebuts the presumption with respect to article 3 and prison conditions in Hungary. In practical terms it is then for the requesting state to dispel the doubts that have arisen. It is also common ground that an assurance from the requesting state is capable of dispelling doubts about whether removal to that state would involve a violation of the Convention by the removing state: Othman (Abu Qatada) v United Kingdom (2012) 55 EHRR 1. Whether it does so requires a fact and circumstance specific inquiry.

I have concluded that the assurance given by the Hungarian authorities, when considered against the decision of the Strasbourg Court in Othman, is sufficient to dispel those doubts. The extradition of these appellants to Hungary would not give rise to a violation of their rights under article 3 of the Convention. There are no substantial grounds for believing that there is a real risk that they will be subjected to treatment contrary to article 3 on account of such time as they may spend on remand or serving any sentence in Hungarian prisons.

Varga was concerned with six applicants who claimed that the conditions of their detention in Hungary violated article 3. The Strasbourg Court applied its pilot judgment scheme to the applications because there were about 450 similar outstanding claims. That scheme is codified in Rule 61 of the court’s procedural rules. Rule 61(3) says that in the pilot judgment the court must “identify both the nature of the structural or systemic problem or other dysfunction as established” and it must “identify the type of remedial measures which the Contracting Party concerned is required to take at the domestic level” as a result of the judgment. That enables the court to examine a small number of representative cases. If they demonstrate a systemic failure the remaining cases may in effect be stayed whilst the government concerned agrees with the Committee of Ministers a package of reforms and improvements which will deliver speedy redress to others affected and to mitigate and then solve the underlying systemic problems.

In addition to an examination of the complaints regarding the conditions in which each applicant was detained, the court was concerned with the adequacy of remedies in Hungary available to prisoners who wished to allege that prison conditions violated article 3 of the Convention. It found them wanting.

There had been longstanding concerns about prison conditions in Hungary, in particular overcrowding, which were reflected in reports of the Hungarian Commissioner for Fundamental Rights and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment. They are discussed in detail between [31] and [38] of the judgment. In [73] to [78] the court reviewed its jurisprudence relating to “extreme lack of space”. It referred to a substantial body of that jurisprudence which may be summarised as follows:

The court noted that Hungary did not dispute the facts relating to space upon which each of the applicants relied at the forefront of their arguments and provided no further information about their individual conditions of detention. The findings with respect to each of the applicants were as follows:

The court then set out its conclusions:

“86.

These findings also coincide with the observations of the CPT subsequent to its visit in 2013 regarding the problem of overcrowding at, in particular, Sopronkőhida Prison and Szeged Prison, which provide a reliable basis for the Court’s assessment (see  Kehayov v. Bulgaria , no.  41035/98 , § 66, 18 January 2005), especially since the Government, in their response, did not dispute the very fact of overcrowding. The visits of the Hungarian Commissioner of Fundamental Rights also corroborate the evidence of a problem of overcrowding at the prison facilities of Márianosztra, Sopronkőhida and Budapest ... The Court must also have regard to the findings of the different domestic courts, which established in a number of cases that the conditions of detention, in particular placement in overcrowded prison cells, infringed the plaintiffs’ personality rights, that is, their right to dignity ...

87.

In the absence of any objection on the Government’s side or any document proving the opposite and given the widespread overcrowding as established by the CPT and the Hungarian Commissioner for Fundamental Rights, the Court has no reason to doubt the allegations of the applicants concerning their living space. It further observes that this space was on most occasions further restricted by the presence of furniture in the cells.

Therefore, these conditions do not satisfy the European standards established by the CPT and the Court’s case-law.

88.

…

89.

… [T]he Court observes that other aspects of the detention, while not in themselves capable of justifying the notion of “degrading” treatment, are relevant in addition to the focal factor of the overcrowding to demonstrate that the conditions of detention went beyond the threshold tolerated by Article 3 of the Convention (see  Novoselov v. Russia , no.  66460/01 , § 44, 2 June 2005).

90.

It notes in particular that in some cells of these applicants, the lavatory was separated from the living area only by a curtain, the living quarters were infested with insects and had no adequate ventilation or sleeping facilities; and detainees had very limited access to the shower and could spend little time away from their cells.

The Government did not refute either the allegations made by the applicants on these points or the findings of the various bodies which had visited the detention facilities where the applicants were detained.

91.

The Court finds that the limited living space available to these detainees, aggravated by other adverse circumstances, amounted to “degrading treatment”.

The Strasbourg Court reflected its conclusion that the applicants were unable to secure an effective remedy in Hungary for the violations of article 3 by finding a violation of article 13. Each applicant was awarded compensation as just satisfaction for the violation of article 3.

It is clear that the focus of the Strasbourg Court was on the problem of overcrowding in Hungarian prisons reflected in the limited personal space available to each of them for prolonged periods of their detention. In applying its pilot judgment scheme the court noted the systemic nature of the problems, and in particular of overcrowding. In [104] and [105] it repeated its position articulated in other cases that the surest way to reduce overcrowding is to reduce the numbers of prisoners by the increased use of non-custodial penalties and bail pending trial. It recognised the complexity of the problems, the political nature of the solution and thus that it is not for the court to dictate what should happen; but it cited with approbation an initiative of the Council of Ministers to the same end which had achieved some success in Italy. Hungary would need to provide an effective remedy, both preventative and compensatory, to give proper redress in such cases [110]. It concluded that Hungary should make changes to its legal system and practice without undue delay [111]. It did not specify a time limit [112] but concluded that Hungary should produce within six months of the judgment becoming final (which it did on 10 June 2015) under the supervision of the Committee of Ministers, a time frame in which to make the appropriate arrangements. The court would examine Hungary’s proposals to determine whether to proceed with any of the outstanding cases [113].

There was some debate before us whether the pilot judgment provides support for the proposition that, leaving aside personal space, the conditions in Hungarian prisons are such that there is always a real risk of a breach of article 3 on account of the other matters which weighed in the balance in some of the cases considered by the Strasbourg Court in Varga. Read as a whole, it is clear that the judgment of the Strasbourg Court was focussed on space and, in respect of the cases under consideration, in terms it rejected the submission that the supporting features could in themselves amount to a violation of article 3. Mr Bailin focussed on the observations in paragraph 78 of the judgment (summarised above) which suggest that even if a prisoner has between 3m² and 4m² of personal space there might be a violation of article 3 if sufficient other degrading features were in play. That was an example of Strasbourg Court carefully avoiding drawing clear-cut boundaries in cases where an evaluation of a constellation of factors may be called for to answer the question whether there has been a violation of the Convention. As is well known, whilst the court lays down general principles its consideration of individual applications are very fact-specific. In my view, the judgment in Varga does not support the proposition that there are substantial grounds for believing that there is a real risk of treatment contrary to article 3 of the Convention for all who enter the Hungarian prison system on account of the subsidiary factors it took into account in instances where the personal space available to a prisoner is 3m² or more. None of the other materials placed before us supports that conclusion either.

The assurance was provided by the Department of International Criminal Law of the Ministry of Justice of Hungary. It is dated 1 June 2015. It provides:

“The Ministry of Justice of Hungary – acting as Central Authority – presents its compliments to the National Crime Agency and in connection with the surrender proceedings being conducted in the United Kingdom on the basis of the Hungarian European arrest warrants, has the honour to provide you with the following guarantee:

The Ministry of Justice of Hungary and the National Headquarters of the Hungarian Prison Service, which has jurisdiction in Hungary to provide this binding assurance, guarantees that the following persons will, if surrendered from England and Wales pursuant to the respective Hungarian European arrest warrants, during any period of detention for the offences specified in the European arrest warrants, be detained in conditions that guarantee at least 3 square metres of personal space. The persons listed below will at all times be accommodated in a cell in which they will personally be provided with the guaranteed personal space.

[The appellants’ names appear in the list which totalled 33]

As of 1 January 2015, Hungary has signed, ratified and implemented the Optional Protocol to the UN Convention Against Torture (OPCAT) and has set up the General Ombudsman as its National Preventative Mechanism. Accordingly, the General Ombudsmen will monitor compliance with this assurance.”

The assurance is designed to enable further names to be added to the list. Its effect, therefore, is to guarantee that anyone extradited from the United Kingdom to Hungary will be provided with the specified space, whatever may be the position for the moment of the many thousands of others detained. The evidence suggests that 17 individuals have been extradited to Hungary with the benefit of this assurance. Whether they did not oppose extradition or chose not to appeal an order made for their extradition is not known. Understandably, the appellants are interested to know the fate of these individuals. Dr Ándrás Kadár, who has provided expert evidence on behalf of the appellants, has made requests for information of the Hungarian Government using freedom of information laws. An application to adjourn these appeals to allow that process to be completed, which would have taken many months, was refused in advance of the hearing. He received a response to some of his inquiries from the Hungarian Ministry of Justice on the day of the hearing of these appeals. In a report dated 21 December Dr Kadár summarised its salient features. A translation of the response itself is not available:

“6.

The action plan in the Varga case was finalized and sent to the Committee of Ministers on 5 December. The Government does not plan to make the action plan public, on the basis that the Committee of Ministers will do so.

7.

With regard to the question on what internal mechanisms guarantee the assurance will be complied with, the Ministry has pointed out that before the assurance is given, the Ministry requests information from the NPA on where the particular person will be placed (since the NPA is responsible for determining the placement of inmates within the prison system). Therefore, the Ministry provides the assurance on the basis of a guarantee from the NPA that the placement will be compatible with Article 3.

8.

The fact that an assurance has been given and the contents of the assurance are recorded in the inmate’s personal penitentiary file, so all penitentiary institutions must be aware of the assurance.

9.

According to the Ministry, if the assurance is not complied with, a complaint can be submitted to the NPA or Ministry, but so far no such complaint has been made by any of the persons who were extradited to Hungary on the basis of such assurances.

10.

The Ministry mentions the Ombudsman (in his capacity of the National Preventative Mechanism under OPCAT) as the institution that monitors compliance with requirements concerning detention conditions. The Ministry also refers to the detention monitoring by international organisations (most probably the CPT, although the body is not mentioned expressly) as a guarantee for compliance with the assurance.”

In addition to seeking information via Hungarian freedom of information laws, the appellants made various requests of the Crown Prosecution Service (who act for the Hungarian Judicial Authorities) for information regarding the fate of those already returned with the benefit of the assurance. No individual specific details have been forthcoming, but Mr Hearn indicated on instructions that there were no known problems with the assurances. He was asked by the court to provide confirmation of those instructions. By letter dated 30 December 2015 the Hungarian Ministry of Justice wrote, in answer to the question whether the assurance had been complied with thus far:

“We confirm that all individuals who have already been surrendered to Hungary pursuant to the … assurance have been provided with the 3 square metres cell space. After each of the surrenders the National Headquarters of the Hungarian Prison Service was notified that the surrender took place and a guarantee was given. The National Headquarters of the Hungarian Prison Service monitors the prison conditions of the inmates so surrendered.”

Inter-governmental assurances have been a feature of extradition law for a very long time. For example, assurances are frequently sought from, and provided by, states where the death penalty is available that it will be not applied to the requested person. In Ravi Shankaran v The Government of the State of India [2014] EWHC 957 (Admin) Sir Brian Leveson P, stated that the scale of migration and of extradition decision-making had made "undertakings and assurances not merely normal but indispensable in the operation of English extradition law". The position of inter-governmental assurances designed to negate a risk which would otherwise prevent removal became a matter of particular controversy in the context of cases concerning international terrorism. Othman was such a case. The British Government wished to remove the applicant to his home country of Jordan because he was considered a threat to British national security in consequence of his suspected involvement in international terrorism. He had been prosecuted and convicted in his absence in Jordan for terrorist offences. If he were deported to Jordan he would be re-tried. He resisted deportation on the grounds that he would be at risk of torture or ill-treatment contrary to article 3 of the Convention in detention in Jordan; that any re-trial would risk a flagrant denial of justice; and that there was a risk that he would be held incommunicado. In consequence that his deportation would also amount to a violation of articles 5 and 6 of the Convention on the part of the United Kingdom. The British Government obtained assurances from the Jordanian Government in respect of all concerns. The primary argument advanced on the applicant’s behalf in Strasbourg was that inter-governmental assurances could never provide the necessary comfort in such cases. Unsurprisingly, the Strasbourg Court rejected that argument. It stated that the task of the court was to “examine whether the assurances obtained in a particular case are sufficient to remove any real risk” [186]. It continued:

“187.

In any examination of whether an applicant faces a real risk of ill-treatment in the country to which he is to be removed, the Court will consider both the general human rights situation in that country and the particular characteristics of the applicant. In a case where assurances have been provided by the receiving State, those assurances constitute a further relevant factor which the Court will consider. However, assurances are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment. There is an obligation to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment. The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time (see   Saadi , cited above, § 148).

188.

In assessing the practical application of assurances and determining what weight is to be given to them, the preliminary question is whether the general human rights situation in the receiving State excludes accepting any assurances whatsoever. However, it will only be in rare cases that the general situation in a country will mean that no weight at all can be given to assurances (see, for instance,  Gaforov v. Russia , no.  25404/09 , § 138, 21 October 2010; Sultanov v. Russia, no.  15303/09 , § 73, 4 November 2010; Yuldashev v. Russia, no.  1248/09 , § 85, 8 July 2010;  Ismoilov and Others , cited above, §127).

189.

More usually, the Court will assess first, the quality of assurances given and, second, whether, in light of the receiving State’s practices they can be relied upon. In doing so, the Court will have regard,   inter alia , to the following factors:

(i)

whether the terms of the assurances have been disclosed to the Court ( Ryabikin v. Russia , no.  8320/04 , § 119, 19 June 2008; Muminov v. Russia, no. 42502/06 , § 97, 11 December 2008; see also Pelit v. Azerbaijan, cited above);

(ii)

whether the assurances are specific or are general and vague (Saadi¸ cited above; Klein v. Russia, no.  24268/08 , § 55, 1 April 2010; Khaydarov v. Russia, no. 21055/09 , § 111, 20 May 2010);

(iii)

who has given the assurances and whether that person can bind the receiving State (Shamayev and Others v. Georgia and Russia, no.  36378/02 , § 344, ECHR 2005-III; Kordian v. Turkey (dec.), no.  6575/06 , 4 July 2006; Abu Salem v. Portugal (dec.), no  26844/04 , 9 May 2006; cf. Ben Khemais v. Italy, no.  246/07 , § 59, ECHR 2009-... (extracts); Garayev v. Azerbaijan, no.  53688/08 , § 74, 10 June 2010; Baysakov and Others v. Ukraine, no.  54131/08 , § 51, 18 February 2010;Soldatenko v. Ukraine, no.  2440/07 , § 73, 23 October 2008);

(iv)

if the assurances have been issued by the central government of the receiving State, whether local authorities can be expected to abide by them (Chahal, cited above, §§ 105-107);

(v)

whether the assurances concerns treatment which is legal or illegal in the receiving State (Cipriani v. Italy (dec.), no.  221142/07 , 30 March 2010; Youb Saoudi v. Spain (dec.), no.  22871/06 , 18 September 2006; Ismaili v. Germany, no.  58128/00 , 15 March 2001; Nivette v. France (dec.), no  44190/98 , ECHR 2001 VII; Einhorn v. France (dec.), no  71555/01 , ECHR 2001-XI; see also Suresh and Lai Sing, both cited above)

(vi)

whether they have been given by a Contracting State (Chentiev and Ibragimov v. Slovakia (dec.), nos.  21022/08  and  51946/08 , 14 September 2010; Gasayev v. Spain (dec.), no.  48514/06 , 17 February 2009);

(vii)

the length and strength of bilateral relations between the sending and receiving States, including the receiving State’s record in abiding by similar assurances (Babar Ahmad and Others, cited above, §§ 107 and 108; Al-Moayad v. Germany (dec.), no.  35865/03 , § 68, 20 February 2007);

(viii)

whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant’s lawyers (Chentiev and Ibragimov and Gasayev, both cited above; cf. Ben Khemais, § 61 and Ryabikin, § 119, both cited above; Kolesnik v. Russia, no.  26876/08 , § 73, 17 June 2010; see also Agiza, Alzery and Pelit, cited above);

(ix)

whether there is an effective system of protection against torture in the receiving State, including whether it is willing to cooperate with international monitoring mechanisms (including international human rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible (Ben Khemais, §§ 59 and 60; Soldatenko, § 73, both cited above; Koktysh v. Ukraine, no.  43707/07 , § 63, 10 December 2009);

(x)

whether the applicant has previously been ill-treated in the receiving State (Koktysh, § 64, cited above); and

(xi)

whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State (Gasayev; Babar Ahmad and Others¸ § 106; Al-Moayad, §§ 66-69).

In the decision in Saadi v Italy (2009) 49 EHRR 30 the Strasbourg Court had considered what might be described as “general assurances” (in that case provided by the Tunisian Government) that do no more than restate domestic legal and international treaty obligations and confirm that they will be complied with. The court considered that such assurances “are not in themselves sufficient to ensure adequate protection…where…reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary” to the Convention. The court’s careful language perhaps highlights the very fact sensitive nature of an inquiry relating to assurances.

Othman and Saadi concerned removal to non-Convention countries in respect of which there was a substantial body of evidence which suggested that prisoners were at risk of torture or ill-treatment at the hands of the police, security or prison services, indeed that torture or ill-treatment were endemic. That context was important in determining whether the assurances proffered were adequate to neutralise what would otherwise have been a real risk. In all cases involving assurances the inquiry touches their “practical application”. The question involves consideration of what is promised, by whom it is promised and whether, having regard to all the circumstances on the ground in the state in question, there is confidence that the promise will be honoured. Counsel’s researches have not discovered a case in Strasbourg where the assurance given by one state party to the Convention to another has been the subject of challenge (still less one between members of the European Union), albeit that reception conditions in respect of removals to both Italy and Greece have been considered by the Strasbourg Court and found not to measure up to the standards of the Convention. Indeed, in the recent case of Tarakhel v Switzerland (App No 29217/2012), which concerned the return to Italy from Switzerland under the Dublin Convention of a family with young children, concerns about the provision of accommodation in Italy to such vulnerable people led the Strasbourg Court to conclude at [122]:

“It follows that, were the applicants to be returned to Italy without the Swiss authorities having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together, there would be a violation of Article 3 of the Convention.”

Both in respect of extradition and removal of immigrants, the jurisprudence of the Strasbourg Court has dictated that assurances accompanying removal or return between Convention states will become commonplace.

Assurances given by Convention states have been considered in many extradition appeals. The parties included many in the bundles of authorities in these appeals. I shall mention a handful of them but do so with this general observation. They provide illustrations of the application to the facts of individual cases of the well-trodden jurisprudence of the Strasbourg Court governing the questions (a) whether prison conditions generally are such as to generate a real risk of degrading treatment; and (b) whether an assurance provided by a Convention state is sufficient to satisfy doubts in the event that the first question is answered in the affirmative. Observations by judges in individual cases, which stem from the circumstances before them, should not be read as requiring particular types of evidence to render an assurance effective. The Strasbourg Court has been careful to avoid identifying “bright lines” both with respect to whether prison conditions violate article 3 standards and whether an assurance is adequate to mitigate any established risk.

Horvath v Hungary [2015] EWHC 3018 (Admin) concerned an assurance that Mr Horvath would be held in Szombathely prison (he was wanted for trial in Szombathely). That is a new private prison about which there are no systemic article 3 concerns. The assurance was sufficient to dispel any doubts arising from the pilot judgment. In Aleksynas and others v Lithuania [2014] EWHC 437 (Admin) and in Antonov v Lithuania [2015] EWHC 1243 (Admin) assurances were given that various requested persons would be detained in a named prison which provided sufficient comfort for article 3 purposes. In Blaj v Court of Alesd, Romania an assurance that the requested person would have at least 2m² of personal space, when coupled with the nature of the institutions in which he might be incarcerated, was sufficient. In line with the Strasbourg jurisprudence, this court rejected a submission that 3m² constituted a “bright line” for article 3 purposes. The assurance did not guarantee detention in any identified penal establishment.

The appellants placed particular reliance on observations of McCombe LJ in Badre v Court of Florence, Italy [2014] EWHC 614 (Admin). The Court concluded on the material before it that the strong presumption that an EU state would comply with its obligations under Convention and EU law was rebutted as regards prison conditions in Italy. It relied substantially on a pilot judgment of the Strasbourg Court in Torreggiani v Italy (No 43517/09 and others) which concerned prison conditions in two particular regions of Italy. An assurance was provided by the Italian authorities which indicated that the requested person would “not necessarily” be detained in two named facilities which had been the subject of criticism in the pilot judgment, but did not say how his article 3 rights would be safeguarded were he to find himself in either. This court applied the judgment of the Strasbourg Court in Othman, noting (as is uncontroversial) that certain of the factors it had identified were likely “at least” to be of some assistance. As Aikens LJ indicated in giving the judgment of the court in Ilia v Appeal Court in Athens (Greece) [2015] EWHC 547 (Admin) at [39] the factors listed in [189] of Othman should not be viewed as a tick list. I would add that the impact or weight of any given one of those factors will vary depending on the individual circumstances of a case. There is no hierarchy of factors, for example.

In Badre this court was not satisfied with the assurance given by the Italian authorities, for various reasons, which were summarised by McCombe LJ at [52] to [54]:

“52.

… I am far from saying that in no case can a court in this country safely order an extradition to Italy. … I do not call into question for one minute the good faith of the Italian authorities in writing the letter that they did. However, it seems to me that, on the specific facts of this present case, the judgment of the European Court, together with the acknowledgment of a continuing systemic problem in the Italian prison system, has rebutted the presumption of compliance with the Convention which would normally arise in the case of a member state of the Council of Europe and of the European Union. This state of affairs, therefore, raises substantial grounds for believing that there is a real risk of treatment contrary to Article 3 and the Respondent has not produced sufficient material to dispel that belief.

53.

For my part, I would have expected at least some information as to whether bail might be available to the Appellant in Italy and on what terms, and, if not available or if not likely to be granted, some information as to the specific institution or type of institution in which the Appellant would be confined and some information as to the prevalent conditions in that institution or those institutions.

54.

While I accept that the Respondent in good faith has sought to provide satisfactory assurance to the court, in my judgment, the material provided, in this particular case, is not sufficient for the purpose.”

It is a central feature of the submissions advanced on behalf of the appellants that, as has happened in many cases (some already mentioned) and was considered desirable in Badre, an assurance in respect of each appellant should identify the penal institutions in which he or she would be held both on remand and following conviction. It is, with respect, a mistake to elevate the observation in [53] of what might have been expected in the particular circumstances of one case into a general requirement which qualifies the test articulated by the Strasbourg Court. The availability of bail has not featured as a factor in the arguments in these appeals. But it should not be overlooked that article 5 of the Convention has been interpreted as having much to say about bail pending trial: see for example the Law Commission’s consideration of the relationship between the law relating to bail in England and Wales and article 5 Bail and the Human Rights Act 1998 (Law Comm No 269). A presumption of compliance with article 5 of the Convention would arise in removal cases, absent clear evidence to the contrary. The availability of detailed evidence of the bail regime in a requesting Convention state may not make it easy to evaluate, save in clear cases at either end of the spectrum, whether bail would or would not be granted. Bail is decided by independent judges once a case is before the courts; and circumstances can change, particularly those relating to an evaluation of flight risk.

Badre recognised the good faith of the Italian authorities in giving the assurance, as do the appellants in this case with regard to the assurance given by the Hungarian authorities. The impact of that good faith and the particular impact of the assurance having come from a Convention state which is also a member of the European Union were considered by this court in Ilia. Question 8 in Othman goes to verification of compliance with the assurance, and unfettered access to a detained person’s lawyers, but was considered in the context of question 6 (whether the state giving the assurance is a Convention state). At [40] Aikens LJ identified the principle to be applied:

“As for question (8) in  Othman   at [189], it is important also to recall that we are dealing with cases in which the assurance will have been given by the JA or a responsible minister or responsible senior official of a government department of a Council of Europe or EU state. In our view there must be a presumption that an assurance given by a responsible minister or responsible senior official of a Council of Europe or EU state will be complied with unless there is cogent evidence to the contrary. This is consistent with the view of the Court of Justice of the European Union ("CJEU") expressed at [83] of  R(NS Afghanistan) v Secretary of State for the Home Department [2013] QB 103   at [83]. That case was concerned with the Common European Asylum System. However the CJEU emphasised that the objective of the EU is to create an area of "freedom, security and justice" and the EU is based upon "mutual confidence and a presumption of compliance by other member states with European Union law and, in particular, fundamental rights". These statements reflect closely those made in paragraphs (5), (10) and (12) of the preamble to the Council Framework Decision of 13 June 2002 ("the FD 2002"), on which Part 1 of the EA is based.”

In summary, Mr Bailin submits that, in view of the acceptance by Hungary that systemic problems persist in their prisons, the assurance provided is inadequate. He prays in aid the following “defects”:

The starting point must be the assurance itself. It has been given by the Ministry of Justice and on behalf of the Hungarian Prison Service. Dr Kádár’s evidence is that the prosecuting authority decides in which institution an accused person will be remanded. That said, I do not regard the absence of the prosecutor from the assurance as being material. The assurance goes to the conditions in which the appellants will be detained wherever they may be located. The assurance itself is specific as to the space the appellants will enjoy if they are detained. There is no ambiguity about it. Therefore the question becomes whether there is cogent evidence that the Hungarian authorities will not honour the assurance.

The starting point is the acceptance of the good faith in which the assurance has been provided, given the presumption referred to in Ilia. The evidence of Dr Kádár is directed principally to the continuing poor conditions in Hungarian prisons. It is common ground that overcrowding remains a problem albeit that as a result of a building programme and reduction in prison numbers the position is improving. He deals with the additional features canvassed in the Varga case. He does not consider recourse to the Ombudsman as satisfactory because any recommendation he might make is not binding on the authorities. He believes that civil action by a prisoner to enforce the assurance would be very time consuming and thus not effective. He is sceptical whether the assurance will be complied with, not for any lack of desire that it should be, but rather because circumstances will lead to its being ignored.

The position with regard to these appellants, and any other requested persons sent with the benefit of this assurance, is that all will have a copy of the assurance in their possession. Most will have had lawyers acting for them in England and Wales to whom they could complain if the assurance is not honoured. All will have lawyers acting for them on their return to Hungary with whom, similarly, they could raise a lack of compliance with the assurance. The Ombudsman has an official role in monitoring prison conditions. He is mentioned in the assurance and would be another obvious point of complaint were something to go wrong. The information provided after the hearing shows that the assurance is recorded on a prisoner’s file. That travels with him around the system. No complaints so far have been made to the Ministry or the prison authorities. All this suggests that any establishment dealing with a prisoner with the benefit of the assurance would be aware of it and that there are effective ways in which non-compliance could be raised. It also suggests, quite apart from positive information now available and set out in [17] above, that there is no reason to suppose that the assurance is not being honoured.

The appellants pray in aid the lack of detailed information regarding the fate of the 17 requested persons already returned as opposed to general evidence that the assurance has been honoured. Othman recognises, as with respect is obvious, that the history of compliance with assurances is a factor for consideration in determining the instant question. In refusing an adjournment of these appeals to enable a full investigation by Dr Kádár of their fate, I recognised the potential relevance of such evidence. That said, I would wish to make clear that it is inappropriate to adjourn cases at first instance or on appeal to enable extensive and time-consuming investigations to be carried out in the hope that something might turn up of benefit. Extradition cases, particularly with regard to category 1 countries, must proceed as swiftly as possible.

There is no evidence of direct monitoring of the assurance by the British Embassy or any other body on behalf of the United Kingdom. Monitoring has featured as an important factor in cases involving removal to non-Convention countries with abysmal human rights records, where there is no ready access to prisoners and no reliable avenues of complaint available. That is not the case when considering a country like Hungary, both a Convention state and a member of the European Union. There is no risk of these appellants being held incommunicado. The absence of such monitoring of the assurance in appeals of this nature does not carry with it concerns that the assurances will not be honoured.

On this aspect of the appeals we were referred to the report of a Select Committee of the House of Lords on Extradition Law HL paper 126, published on 10 March 2015. This was a post-legislative scrutiny committee established by the House of Lords. In the appellants’ skeleton argument we were asked “to endorse” certain of its conclusions. It is not uncommon in proceedings in the Administrative Court for Parliamentary debates and reports to be relied upon. There are limited circumstances (e.g. Pepper v Hart [1992] UKHL 3 [1993] AC 593) where that is appropriate. However, courts may not “question” proceedings in Parliament: Article 9 of the Bill of Rights. That limitation has been considered in numerous decisions of the higher courts. In Office of Government Commerce v Information Commissioner [2008] EWHC 737 (Admin) [2010] QB 98 at [58] Stanley Burnton J said this about Select Committee reports:

“If a party to proceedings before a court …seeks to rely on an opinion expressed by a Select Committee, the other party, if it wishes to contend for a different result, must either contend that the opinion of the Committee was wrong (and give reasons why), thereby at the very least risking a breach of Parliamentary privilege, if not committing an actual breach, or, because of the risk of that breach, accept that opinion notwithstanding that it would not otherwise wish to do so. This would be unfair to that party. It indicates that a party to litigation should not seek to rely on the opinion of a Parliamentary Committee, since it puts the other party at an unfair disadvantage and, if the other party does dispute the correctness of the opinion of the Committee, would put the Tribunal in the position of committing a breach of Parliamentary privilege if it were to accept that the Parliamentary Committee's opinion was wrong. As Lord Woolf MR said in Hamilton v Al Fayed   at [1999] 1 WLR 1586G, the courts cannot and must not pass judgment on any Parliamentary proceedings.”

Both endorsement of and disagreement with the conclusions of the Select Committee report would be inappropriate.

The assurance is a solemn diplomatic undertaking by which the Hungarian authorities consider themselves bound. We have no evidence about whether Hungarian law would enable a beneficiary of the assurance to enforce it in legal proceedings, as a person with the benefit of a similar assurance given by the British Government might seek to do in public law proceedings relying on a substantive legitimate expectation. But to my mind the absence of such a remedy does not call into question the reliability of the assurance. It is binding as between the two countries concerned.

In my judgment there is no basis for concluding that the assurance given by the Hungarian authorities relating to the treatment of these appellants (and all those on the list or who might be added to it) will not be honoured. The presumption that it will be has not been displaced. The recent evidence suggest that it has in fact been honoured It follows that the grounds for believing that there is a real risk of treatment contrary to article 3 of the Convention arising from the pilot judgment in Varga in the absence of the assurance, have effectively been met by the assurance. I would dismiss this ground of appeal in each of the cases before us.

The principles applicable when article 8 is relied upon by a requested person to resist extradition are well known. They are to be found in Norris v United States of America [2010] 2 AC 487 and HH v Italy [2013] 1 AC 338. Whilst there is no legal test of exceptionality “it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe”: Lady Hale at [8] in HH. The interests of children are “a primary consideration”, [33]. In Celinski v Poland [2015] EWHC 1274 (Admin) at [17] this court expressed its hope that District Judges hearing extradition cases where article 8 is relied upon by a requested person would list the factors for and against extradition and provide reasons why the balance fell one way rather than the other. Mr Stansfeld accepts that District Judge Coleman did just that but submits that she failed “to place adequate weight on the impact of the extradition on the appellant’s son”. He submits further that, as a result of a year having passed since the judge made her assessment, it is appropriate that we should do so again in the light of up-to-date evidence from the appellant. Mr Hearn did not resist that suggestion.

Mr Árpási came to the United Kingdom in 2011. His son was born in November 2013. At the time of the hearing before the judge, the appellant’s partner, who had worked as a cleaner, was a full-time mother. Both mother and child were financially dependent upon the appellant who is a painter and decorator. In his very recent proof of evidence, the appellant describes how his relationship with his partner has been under strain and that she left him for a period of four months. During that period he had physical custody of his son. His partner visited. The appellant’s mother came from Hungary to help look after the child.

The appellant and his partner are back together now. He talks of his close bond with his son. He is worried that his partner will not cope if he goes to Hungary to serve his sentence and, in particular, explains that they are both financially dependent upon him.

The imprisonment of a parent, whether in the United Kingdom or abroad, in many cases will have an adverse impact upon the children. The possibility of arranging prison visits is more difficult when incarceration is abroad and only to some extent mitigated by the availability of face to face communication via Skype and the like. An interruption in the appellant’s close involvement in the day to day care of his son will almost certainly have an effect on their relationship which would require some rebuilding in the future.

The reality of the appellant’s position is that it is entirely commonplace and is replicated in most extradition cases where a parent of young children is the subject of an EAW or extradition request. These facts are a very long way from those in contemplation in HH. The consequences are not nearly sufficiently compelling to defeat the extradition request. I would reject this ground of appeal.

The appeals of András Osztrovszky and Gyorgy Rafael fall to be dismissed because they have failed to establish that their rights under article 3 of the Convention would be violated if extradited to Hungary. The appeal of Zsolt Árpási falls to be dismissed because, in addition to his failure to establish the article 3 point, he has failed to show that his extradition is prevented by his family rights under article 8 of the Convention. The appeal of GS will be adjourned for further consideration of her article 8 ground, having determined that the appeal does not succeed on article 3 grounds.

I agree.