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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC 1149 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| PETER BOGDAN
|- and -
|JUDGE OF LAW ENFORCEMENT AT VESZPREM
REGIONAL COURT, HUNGARY
James Hines QC and Amada Bostock (instructed by CPS) for the Respondent
Hearing dates: 29 March 2022
Crown Copyright ©
Mr Justice Julian Knowles:
Background: the Polish 'rule of law' cases
"59. It must, accordingly, be held that the existence of a real risk that the person in respect of whom a European arrest warrant has been issued will, if surrendered to the issuing judicial authority, suffer a breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial, a right guaranteed by the second paragraph of Article 47 of the [EU Charter of Fundamental Rights], is capable of permitting the executing judicial authority to refrain, by way of exception, from giving effect to that European arrest warrant, on the basis of Article 1(3) of [the EAW Framework Decision].
60. Thus, where, as in the main proceedings, the person in respect of whom a European arrest warrant has been issued, pleads, in order to oppose his surrender to the issuing judicial authority, that there are systemic deficiencies, or, at all events, generalised deficiencies, which, according to him, are liable to affect the independence of the judiciary in the issuing Member State and thus to compromise the essence of his fundamental right to a fair trial, the executing judicial authority is required to assess whether there is a real risk that the individual concerned will suffer a breach of that fundamental right, when it is called upon to decide on his surrender to the authorities of the issuing Member State (see, by analogy, judgment of 5 April 2016, Aranyosi and Caldararu, C-404/15 and C-659/15 PPU, EU:C:2016:198, paragraph 88)."
a. 'systemic … or … generalised deficiencies' in connection with independence of the judiciary are not enough, without more, to prevent extradition;
b. where such deficiencies are relied upon by the individual, the executing judicial authority must assess in respect of that person whether there is a real risk of a 'breach' or 'compromise' of the 'essence of his fundamental right to a fair trial';
c. the focus is therefore on whether the individual concerned, given the nature of the proceedings which he faces on return, faces a substantial risk of being denied the essence of his fundamental right to a fair trial.
"68. If, having regard to the requirements noted in paragraphs 62 to 67 of the present judgment, the executing judicial authority finds that there is, in the issuing Member State, a real risk of breach of the essence of the fundamental right to a fair trial on account of systemic or generalised deficiencies concerning the judiciary of that Member State, such as to compromise the independence of that State's courts, that authority must, as a second step, assess specifically and precisely whether, in the particular circumstances of the case, there are substantial grounds for believing that, following his surrender to the issuing Member State, the requested person will run that risk … (see, by analogy, in the context of Article 4 of the Charter, judgment of 5 April 2016, Aranyosi and Caldararu, C404/15 and C659/15 PPU, EU:C:2016:198, paragraphs 92 and 94)."
"91. … a finding that there is a real risk of inhuman or degrading treatment by virtue of general conditions of detention in the issuing member state cannot lead, in itself, to the refusal to execute a European arrest warrant.
92. Whenever the existence of such a risk is identified, it is then necessary that the executing judicial authority make a further assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk because of the conditions for his detention envisaged in the issuing member state.
93. The mere existence of evidence that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention, with respect to detention conditions in the issuing member state does not necessarily imply that, in a specific case, the individual concerned will be subject to inhuman or degrading treatment in the event that he is surrendered to the authorities of that member state.
94. Consequently, in order to ensure respect for article 4 of the Charter in the individual circumstances of the person who is the subject of the European arrest warrant, the executing judicial authority, when faced with evidence of the existence of such deficiencies that is objective, reliable, specific and properly updated, is bound to determine whether, in the particular circumstances of the case, there are substantial grounds to believe that, following the surrender of that person to the issuing member state, he will run a real risk of being subject in that member state to inhuman or degrading treatment, within the meaning of article 4".
"70. It is apparent from recital 10 of Framework Decision 2002/584 that implementation of the European arrest warrant mechanism may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 2 TEU, determined by the European Council pursuant to Article 7(2) TEU, with the consequences set out in Article 7(3) TEU.
71. It thus follows from the very wording of that recital that it is for the European Council to determine a breach in the issuing Member State of the principles set out in Article 2 TEU, including the principle of the rule of law, with a view to application of the European arrest warrant mechanism being suspended in respect of that Member State.
72. Therefore, it is only if the European Council were to adopt a decision determining, as provided for in Article 7(2) TEU, that there is a serious and persistent breach in the issuing Member State of the principles set out in Article 2 TEU, such as those inherent in the rule of law, and the Council were then to suspend Framework Decision 2002/584 in respect of that Member State that the executing judicial authority would be required to refuse automatically to execute any European arrest warrant issued by it, without having to carry out any specific assessment of whether the individual concerned runs a real risk that the essence of his fundamental right to a fair trial will be affected.
73. Accordingly, as long as such a decision has not been adopted by the European Council, the executing judicial authority may refrain, on the basis of Article 1(3) of Framework Decision 2002/584, to give effect to a European arrest warrant issued by a Member State which is the subject of a reasoned proposal as referred to in Article 7(1) TEU only in exceptional circumstances where that authority finds, after carrying out a specific and precise assessment of the particular case, that there are substantial grounds for believing that the person in respect of whom that European arrest warrant has been issued will, following his surrender to the issuing judicial authority, run a real risk of breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial."
"59. To accept that systemic or generalised deficiencies so far as concerns the independence of the issuing Member State's judiciary, however serious they may be, give rise to the presumption that, with regard to the person in respect of whom a European arrest warrant has been issued, there are substantial grounds for believing that that person will run a real risk of breach of his or her fundamental right to a fair trial if he or she is surrendered to that Member State – which would justify the non-execution of that arrest warrant – would lead to an automatic refusal to execute any arrest warrant issued by that Member State and therefore to a de facto suspension of the implementation of the European arrest warrant mechanism in relation to that Member State, whereas the European Council and the Council have not adopted the decisions envisaged in the preceding paragraph.
60. Consequently, in the absence of such decisions, although the finding by the executing judicial authority of a European arrest warrant that there are indications of systemic or generalised deficiencies so far as concerns the independence of the judiciary of the issuing Member State, or that there has been an increase in such deficiencies, must, as the Advocate General noted, in essence, in point 76 of his Opinion, prompt that authority to exercise vigilance, it cannot, however, rely on that finding alone in order to refrain from carrying out the second step of the examination referred to in paragraphs 53 to 55 of this judgment
61. It is for that authority, in the context of that second step, to assess, where appropriate in the light of such an increase, whether, having regard to the personal situation of the person whose surrender is requested by the European arrest warrant concerned, the nature of the offence for which he or she is being prosecuted and the factual context in which the arrest warrant was issued, such as statements by public authorities which are liable to interfere with the way in which an individual case is handled, and having regard to information which may have been communicated to it by the issuing judicial authority pursuant to Article 15(2) of [the EAW Framework Decision], there are substantial grounds for believing that that person will run a real risk of breach of his or her right to a fair hearing once he or she has been surrendered to the issuing Member State. If that is the case, the executing judicial authority must refrain, pursuant to Article 1(3) of that framework decision, from giving effect to the European arrest warrant concerned. Otherwise, it must execute that warrant, in accordance with the obligation of principle laid down in Article 1(2) of that framework decision."
"69. In the light of all the foregoing considerations, the answer to the questions referred is that Article 6(1) and Article 1(3) of [the EAW Framework Decision] must be interpreted as meaning that, where the executing judicial authority, which is called upon to decide whether a person in respect of whom a European arrest warrant has been issued is to be surrendered, has evidence of systemic or generalised deficiencies concerning the independence of the judiciary in the Member State that issues that arrest warrant which existed at the time of issue of that warrant or which arose after that issue, that authority cannot deny the status of 'issuing judicial authority' to the court which issued that arrest warrant and cannot presume that there are substantial grounds for believing that that person will, if he or she is surrendered to that Member State, run a real risk of breach of his or her fundamental right to a fair trial, guaranteed by the second paragraph of Article 47 of the Charter, without carrying out a specific and precise verification which takes account of, inter alia, his or her personal situation, the nature of the offence in question and the factual context in which that warrant was issued, such as statements by public authorities which are liable to interfere with how an individual case is handled."
See also Wozniak, -, discussing L and P.
"200. Turning to Ms Montgomery's principal submission, we are satisfied that it is not permissible to extrapolate from the general situation in Poland and the systemic threats to independence identified in the material we have set out, serious though they are, that there is specific and real risk of breach of the Appellants' fundamental right to a fair trial, so as to make it unnecessary to carry out a specific and precise assessment on the facts of their particular cases. In other words, it is still necessary, per LM at , to make an assessment that:
"… [has] regard to his personal situation, as well as to the nature of the offence for which he is being prosecuted and the factual context that form the basis of the European arrest warrant."
"216. We agree with Ms Malcolm that there is nothing in the material before us, nor any particular feature of the Appellants' cases, which gives rise to a proper basis to refuse to execute their respective EAWs.
217. We start with the nature of their offences. They are ordinary criminal offences (some at a fairly low level) with no political overtones, or indeed any feature of any note. They are unremarkable and unexceptional. We are not persuaded that even if the judges who are to try the cases ruled in favour of the defence, that would be a matter of any concern to the prosecutor or the Polish authorities. Their cases must be typical of hundreds, if not thousands, of cases in Poland each year."
The judgment of the district judge in summary
a. Creation of the role of President of the National Office of the Judiciary (NOJ) as a politically elected individual empowered to oversee the administration of courts.
b. Forced retirement of judges by reducing mandatory age of retirement from 70 to 62, allowing the constitution of courts to be fundamentally changed.
c. Creation of a new procedure for the 'unification of jurisprudence' in Hungary as a means of establishing a mandatory interpretation of the law.
d. Deliberate rhetorical attacks on the judiciary, particular judges and the rule of law as a whole.
e. Disciplinary action against a member of the judiciary for referring a question on judicial independence to the CJEU.
f. Failure of executive bodies to execute binding court decisions.
a. The evidence adduced by the Applicants did not establish that Hungarian courts could no longer be considered as judicial authorities;
b. In any event, the court was bound by the EAW Framework Decision and the caselaw of the CJEU, together with analogous decisions in relation to Poland, until or unless the Article 7 process in the case of Hungary concluded and a decision was taken, consequent thereon, to suspend the EAW Framework Decision in relation to Hungary;
c. That even if the court were to find that the first stage of the test in LM were made out, there was no evidence to suggest that the Applicants would be prejudiced in any proceedings in Hungary. The attempt to use the general to prove the particular was an impermissible attempt to get round the lack of evidence to establish the second stage of the test.
a. If the Applicant was to be extradited, there were two possible ways in which Hungarian judges could be involved in the execution of his sentence. The first was that a judge may need to decide how much time the Applicant should have deducted from his sentence to reflect any time spent in detention in the UK. The second was that a judge may be involved in making a decision about the Applicant's eligibility for parole (see ).
b. Reforms in 2012 established the office of the President of the National Office for the Judiciary, an 'external actor' who took over the administration of the court system and who was appointed by Parliament and had wide powers .
c. The National Judicial Council, consisting of the President of the Kuria (Supreme Court) and 14 judges was a counterbalance to the NOJ but in practice they do not have sufficient powers to exercise this function effectively and reforms had not remedied the problem .
d. The system of allocation of cases is not sufficiently safeguarded against manipulation and several judges have claimed that it has been used to manipulate the outcome of a case .
e. The lowering of the judicial retirement age led to the retirement of approximately 200 judges which coincided with a new system whereby the NOJ was permitted to appoint judicial leaders including court presidents . Dr Kádár considered this problematic because it was an important example of what he described as an attempt to slowly, incrementally, but consciously create a situation where judicial leaders are selected by someone loyal to the Government .
f. In response to an example provided by Counsel which appeared to show a system of checks and balances operating, Dr Kádár stated that it was not his contention that all the institutions which exist in principle to check and balance the Executive are dysfunctional all the time. He described Hungary not as a dictatorship but rather a hybrid, illiberal regime where semi-functioning of checks and balances could be seen  and .
g. In relation to the cases of Mr Baka and Mr Varga, the main concern highlighted by Dr Kádár was the use of the law to target individuals and to suit the desires of those in power .
h. Dr Kádár noted that in several criminal cases, politicians had made comments before the criminal cases had gotten underway, prejudging the guilt of individuals. He gave a particular example of a case in which red toxic sludge had killed ten people and a Minister had made it clear that the CEO was responsible. In fact, he was found not guilty at first instance  to .
i. In relation to the new system of precedent, which requires the agreement of five judges (out of a typical bench of eight) to agree to any changes in the law or to cases which set a precedent, Dr Kádár accepted that, due to the low numbers of decisions, he had not yet been able to analyse the decisions to see if there were any cases which he thought had been wrongly decided or decided along political lines .
j. In response to a survey of judges (which was only completed by 16.5% of the judiciary) which showed that 96% of judges were happy with their jobs, Dr Kádár queried why over 80% of judges had not completed the questionnaire and suggested this was due to a general feeling of mistrust . He accepted judicial salaries had been increased but suggested this was less to do with improving judicial independence and more to quell dissatisfaction amongst judges to further the government's political aims .
k. Dr Kádár accepted that there was still some resilience in the Hungarian judiciary, as evidenced by some cases in which domestic courts had used their powers to ensure compliance with the decisions of international courts .
l. Following an ECtHR decision which made recommendations as to reforms to the legal system for individuals who had suffered delay, Dr Kádár commented that proposals for reform had stalled in the Hungarian legislature and that this demonstrated a failure of the Hungarian state to remedy an issue which the Council of Ministers had characterised as technical yet straightforward .
m. When asked about a recent law, known as Lex NGO, which requires NGOs to disclose who their funders are, particularly if they are abroad, Dr Kádár stated that the purpose of this law was not to improve transparency (noting that many measures were already in place) but rather to stigmatise NGOs who received foreign funding, as was confirmed by the CJEU  to .
n. There was no particular ordinary criminal case which Dr Kádár could point to where a judge had expressed themselves to be under pressure or reached a contrary conclusion due to pressure. However Dr Kádár pointed out that the general atmosphere of mistrust meant that it was hard for judges to speak out .
"I do find I can consider the impact of the evidence on the RPs' specific situations, but I reject the ultimate argument of Mr Southey QC and Miss Iveson, which does not lead me to the conclusion that I should refuse the extradition of any of these three RPs on the bases contended." .
"However, I find that his evidence, and all the evidence taken as a whole, discloses theoretical, generalised, systemic potential flaws in the Hungarian judicial system, but they do not lead me to the conclusion that there is a real risk that, considered individually, any of these three RPs will be prejudiced by those potential flaws." .
"All three RPs have already been tried, convicted and sentenced. Specifically and precisely assessing each of their particular cases, I have found no substantial grounds for believing that any of these three RPs runs a real risk of being subject to a breach of their fundamental rights. There is no evidence that the judges who issued any of the three EAWs or who may deal with any of the three RPs, should any one of them be extradited, have been or will be affected by the potential flaws identified.
With reference to the test in LM, while systemic and generalised theoretical flaws within the Hungarian rule of law may exist, I have received no evidence, and I do not find, that those potential deficiencies are liable to have an impact at the level of Hungarian courts which have jurisdiction over the proceedings to which any of the three RPs have been or will be subject."  to .
"That is a two-stage process. First, does objective, reliable, specific and up to date material establish a real risk of the fundamental right to a fair trial being breached, connected to a lack of independence of the courts in the issuing Member State, on account of systemic or generalised deficiencies. Only if so, secondly, does the risk exist in the case of the particular RP under consideration, having regard to his or her personal situation, as well as to the nature of the crime prosecuted. Given that, in this instant case, all three RPs have been convicted, the answer to both questions is 'no', and in particular no evidence has been placed before this court to suggest that the particular trial, long since concluded, of any of these three RPs was unfair by dint of the concerns raised by Dr Kádár, or indeed for any other reason, or that their treatment in future (e.g. as to the refinement or adjustment of their sentences if extradited) will be so affected." .
"Lis makes clear that the only body which can determine that the JA is not a judicial authority for the purpose of the Framework Decision is the European Council. The Court in Lis rejected the challenge under section 2 and this remains the current law.
The Divisional Court in Lis was explicit that it was only where the European Council had made the relevant decision that an executing judicial authority would be permitted automatically to refuse to surrender a requested person and not be obliged to carry out a specific assessment."  -.
The single judge's permission decision
Grounds of appeal on this application
a. failed to make a separate finding regarding Stage 1 of LM/Aranyosi but had conflated Stages 1 and 2;
b. he erred in finding that evidence which points to a systemic problem could not also satisfy Stage 2 of LM/Aranyosi;
c. the judge erred in rejecting the contention that a court could lack sufficient independence to be an issuing judicial authority, even where there has been no final determination by the European Council under Article 7 TEU.
"I am not able to point to published data which would show that judges dealing with ordinary criminal cases feel under pressure to approach cases in a certain way or have had their independence compromised…".
"196. Miss Malcolm QC [then appearing for the Respondent] relied upon Dr Kádár's oral evidence to the effect that no judge has expressed, to his knowledge, a concern about pressure being brought to bear in an ordinary criminal case. He had also given evidence that he knows of no case where objectively the decision appears to be contrary to the evidence and where, therefore, an objective and impartial observer might be able to suggest that the decision has been brought about as a result of improper pressure. In combination, Miss Malcolm QC submitted that the foregoing presents information as to the current state in Hungary. She finished by underlining her submissions that, even were the court to disagree with her position on the law, the threshold was not crossed so as to give rise to real concerns about current judicial independence in Hungary."
"64. As we have noted, the Reasoned Proposal by the Commission does not have the effect of suspending the EAW system in a general way. But it does have the effect of raising the question whether or not there is a serious and persistent breach in the issuing Member State of the principles set out in Article 2 TEU. In our view, the conclusion that there is such a breach is consistent with the history of events in Poland to date as summarised earlier in this judgment and set out more fully in the Reasoned Proposal itself, the supporting material, and indeed the expert evidence before us. It means that this court must consider the impact on these individual applicants of the deficiencies which may affect them (see the judgment in Luxembourg, paragraph ). Further, the question may arise whether supplementary information is needed to assess whether there is a risk of the necessary quality, paragraph ."
"226. That is a two-stage process. First, does objective, reliable, specific and up to date material establish a real risk of the fundamental right to a fair trial being breached, connected to a lack of independence of the courts in the issuing Member State, on account of systemic or generalised deficiencies. Only if so, secondly, does the risk exist in the case of the particular RP under consideration, having regard to his or her personal situation, as well as to the nature of the crime prosecuted. Given that, in this instant case, all three RPs have been convicted, the answer to both questions is "no", and in particular no evidence has been placed before this court to suggest that the particular trial, long since concluded, of any of these three RPs was unfair by dint of the concerns raised by Dr Kádár, or indeed for any other reason, or that their treatment in future (e.g. as to the refinement or adjustment of their sentences if extradited) will be so affected.
240. In carrying out a specific assessment of whether the three RPs run a real risk that the essence of their fundamental rights, whether of their historic trials or of future judicial treatment, has been or will be affected, I find no evidence of any such real risk for any of the three RPs. I do not accept that evidence which points to generalised systemic problems can also demonstrate a real risk to every defendant or every person extradited. Each RP, whom I have considered individually, has failed to demonstrate a specific risk which applies to them. The state of the present law is that a requested person must demonstrate, on the facts of their individual case, that there is a real risk of breach of their fundamental rights. On the basis of the evidence adduced in present proceedings, this is not so. Indeed, each of the RPs' cases is a classic example of ordinary criminal offending without a political or sensitive context."
"It follows from what I have said that I am satisfied that this Court lacks jurisdiction to consider this appeal. The question then arises as to how we should dispose of it. It is before us as an application for permission. As I do not consider that the application passes the "real prospect of success" test on the jurisdictional issue, the normal course would be simply to refuse permission. At the conclusion of the hearing we canvassed the possibility of our granting permission and dealing with the appeal substantively, albeit as a two-judge court. Both parties indicated that they would consent to that, although Mr Sheldon's position remains that the appeal is unarguable. As we are a two-judge court, I would grant permission to appeal on the "some other compelling reason" basis, the reason being that I am reluctant to impose finality on this issue without any possibility of further recourse. Accordingly, I would grant permission but dismiss the appeal. The grant of permission is limited to the jurisdiction issue. I do not propose to comment on the substantive grounds of appeal. For my part, I would be unlikely to grant permission to appeal to the Supreme Court (if such an application were made to us)."
"43. The present appeals illustrate the potential pitfalls of a rule based on a finding of clear inconsistency. The appellants, the First Secretary of State and the Court of Appeal in the Leeds case find a clear inconsistency between Qazi and Connors. The respondents and the Court of Appeal in the Lambeth case find no inconsistency. Some members of the House take one view, some the other. The prospect arises of different county court and High Court judges, and even different divisions of the Court of Appeal, taking differing views of the same issue. As Lord Hailsham observed (ibid, p 1054), "in legal matters, some degree of certainty is at least as valuable a part of justice as perfection." That degree of certainty is best achieved by adhering, even in the Convention context, to our rules of precedent. It will of course be the duty of judges to review Convention arguments addressed to them, and if they consider a binding precedent to be, or possibly to be, inconsistent with Strasbourg authority, they may express their views and give leave to appeal, as the Court of Appeal did here. Leap-frog appeals may be appropriate. In this way, in my opinion, they discharge their duty under the 1998 Act. But they should follow the binding precedent, as again the Court of Appeal did here."