Klenovszki v Regional Court of Law In Debrecen (Hungary)

The Appellant was convicted in his absence by the Regional Court of Law in Debrecen, Hungary of a number of offences of dishonesty and sentenced to four and a half years' imprisonment. A European Arrest Warrant was issued by the requesting Judicial Authority in Hungary on 29 March 2012 and certified by the National Crime Agency in the UK on 16 March 2016.

The Appellant was arrested and appeared before the Westminster Magistrates' Court. He did not consent to his extradition on his first appearance in court on 6 May 2016. The hearing was adjourned first to 27 June and then to 10 August 2016 when the case was heard by District Judge Dennis Brennan.

The ground on which Mr Klenovszki resisted extradition before the District Judge was that it would breach his rights under ECHR Article 8. The judge was also asked to consider a statement of Mr Richard Ritter adduced on the day of the hearing to the effect that he, Mr Ritter, had been imprisoned in Hungary following his extradition from the UK in conditions which breached Article 3 of the Convention. The judge was asked to grant yet a further adjournment for further inquiries to be made on this issue, but refused.

In a reserved judgment given on 27 September 2016, the judge ordered the Appellant's extradition to Hungary. With the leave of Sir Stephen Silber sitting as a judge of this court given on 24 February 2017, the Appellant appeals.

The original grounds of appeal made points under both Article 3 and Article 8, but the Appellant's advisers, quite rightly as it seems to me, concluded that the Article 8 grounds had no prospect of success on appeal and have not pursued them.

The Article 3 grounds are argued largely on the basis of evidence that was not before the District Judge. Mr Julian Knowles QC for the Respondent did not object to our considering the evidence, although he submitted that it was not technically admissible unless it would be decisive in the Appellant's favour: see the well-known decision of this court in Szombathely City Court v Fenyvesi [2009] 4 All ER 3245.

By letter of 1 June 2016, the Ministry of Justice of Hungary provided what it described as a guarantee in the Appellant's case in the following terms:

In its pilot judgment Varga and Others v Hungary [2015] 61 EHRR 30 the European Court of Human Rights considered four complaints in relation to a number of prisons in Hungary and found widespread violations of Article 3. However, none of the four cases concerned the prison at Szombathely. On the contrary, footnote 4 to the judgment states:

In Varga and the recent decision of Muršic v Croatia the court attached particular importance to the requirement for each prisoner to have at least 3 square metres of personal space.

In Grecu v Romania [2017] EWHC 1427 (Admin) this court, Irwin LJ and Collins J, summarised the effect of the Strasbourg jurisprudence, including Varga and Muršic, as being this. The figure of 3 square metres is a normative figure which creates a strong presumption of a violation of Article 3 unless the following three conditions are cumulatively met: (a) any reductions in the required minimum personal space of 3 square metres are short, occasional and minor; (b) such reductions are accompanied by sufficient freedom of movement outside the cell and adequate out of cell activities; (c) the applicant is confined in what are, when viewed generally, appropriate detention facilities, and there are no other aggravating aspects of the conditions of his or her detention.

This court has held that an assurance from the Hungarian authorities that a fugitive extradited to Hungary will be imprisoned at Szombathely is sufficient to defeat a submission that if extradited in accordance with the assurance, the fugitive would be subject to degrading treatment in breach of Article 3 by reason of prison conditions. The case was Horvath v Hungary [2015] EWHC 3018 (Admin), a decision of Aikens LJ and Ouseley J.

In GS and Ors v Central District of Pest Hungary [2016] 4 WLR 33 this court, then comprising Burnett LJ and Ouseley J, held that the more general assurance that a person extradited to Hungary will be detained in conditions that guarantee at least 3 square metres of personal space is sufficient to ensure Article 3 compliance and to meet what had been the principal concern of the Strasbourg court in Varga. In paragraph 36, Burnett LJ said:

There is, as Mr Rupert Bowers QC for the Appellant realistically concedes, no evidence that conditions at Szombathely Prison have deteriorated since the decision of this court in Horvath. Accordingly, it follows that if the explicit assurance given in this case in the letter of 1 June 2016 is to be treated as reliable, the appeal must fail. Mr Bowers, however, submits that the evidence available to us demonstrates that the assurance cannot be relied on.

The first statement relevant to this is from Mr Ritter signed on 1 November 2016. He was extradited from the UK to Hungary on 19 February 2016 and spent some three and half months in a prison in Budapest in what he alleges were very unpleasant conditions, including available space per prisoner being considerably below 3 square metres.

There is no evidence about what assurance was given by the Hungarian authorities in his case. We can safely infer that there was no assurance given that he would be sent to Szombathely Prison, otherwise he would certainly have said so. Although Mr Knowles submitted that if Mr Ritter had consented to extradition no assurances would have been required at all, I think it is more probable than not that a general assurance was given of the type considered in the GS case.

The Appellant also relies on a report of Dr András Kádár dated 16 June 2017. He is a Hungarian lawyer and co-chair of the Hungarian Helsinki Committee ("HHC") which, in his own description, is "a human rights watchdog NGO" focusing, among other things, on detention conditions in Hungarian prisons. He is a respected expert whose evidence was relied on in the Horvath case.

He states that he has been approached by one complainant and his colleagues in the HHC have been approached by two further complainants, each of whom claims that the assurances Hungary gave in relation to the detention conditions under which they were to be held once extradited were not fully complied with.

Dr Kádár very fairly observes that most of the complaints have not been substantiated by official documentation, although in one of the three cases it has apparently been established and accepted by the prosecuting authorities that the complainant concerned had, for a two and a half month period, not been provided with the required personal space.

We were also shown a written statement from another Hungarian lawyer, Dr Pal Janosi, stating that he has clients who are kept in conditions where the 3 square metres requirement is not complied with; and a statement of another prisoner in another penal institution, not Szombathely, about the very unsatisfactory conditions prevailing there.

I am prepared to accept that we have evidence from a number of prisoners, including some extradited to Hungary from other countries, alleging that conditions in prison establishments other than Szombathely are less than satisfactory and in some cases fail to comply, at any rate from time to time, with the 3 square metres requirement.

But I do not accept Mr Bowers' argument that it follows from this that the assurance given in the present case that the Appellant will serve his sentence at Szombathely is unreliable. There is a considerable difference between a highly specific assurance, for example, that a fugitive if extradited will not be at risk of the death penalty or that he will be imprisoned in a named prison for the whole period of his detention, and more general undertakings about prison conditions which may be breached from time to time in a particular case, perhaps temporarily or inadvertently.

If an assurance that a fugitive will be sent to a specific prison were not honoured, it could only be an intentional act on behalf of the requesting state and would no doubt seriously jeopardise the requesting state's ability to secure the extradition of fugitive offenders or suspects from the UK.

In Ilia v Greece [2015] EWHC 547 (Admin) Aikens LJ said that there is a presumption that an assurance given by a responsible minister or senior official of a Council of Europe or European Union state will be complied with unless there is cogent evidence to the contrary.

In Elashmawy v Court of Brescia, Italy [2015] EWHC 28 (Admin) Aikens LJ said at paragraph 50:

In paragraph 90 in the same case, Aikens LJ said:

In the present case, we have evidence (in all cases, except Mr Ritter's, hearsay evidence) that in a small number of individual cases in other prisons besides Szombathely prisoners are being held in unsatisfactory conditions. This, to my mind, falls well short of cogent evidence that Hungary would dishonour its clear and specific assurance in the present case.

I should add that at the hearing today we were shown two very recent documents. One is a letter of 21 June 2017 from the Hungarian authorities expressing their view that prison conditions have improved to such an extent that assurances should no longer be necessary and, by way of contrast, a recent report from the HHC which, while accepting that in some respects there have been some improvements, paints a less rosy picture. We have not taken into account the expression of view by the Hungarian authorities that assurances should no longer be necessary or that prison conditions have substantially improved: indeed, Mr Knowles did not really suggest that we should.

For these reasons, I would dismiss the appeal.

I agree.