QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
MR JUSTICE OUSELEY
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Mr M Summers QC and Mr N Hearn (instructed by the Crown Prosecution Service) appeared on behalf of the Defendant
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The Extradition Proceedings
The parties' arguments on Article 3
"Where the facts of an application reveal in the contracting party concerned the existence of a structural or systemic problem or other similar dysfunction which has given or may give rise to similar applications."
(See rule 61(1))
"During any period of detention for the offences specified in the EAW, the appellant would be detained in conditions that guarantee at least three square metres of personal space and that he would at all times be accommodated in a cell in which he would personally be provided with the guaranteed personal space."
"The Ministry of Justice of Hungary -- acting as Central Authority -- presents its compliments to the National Crime Agency and referring to the surrender proceedings conducted against Andras Horvath, has the honour to send you the following information:
For the avoidance of doubt, we confirm that the undertaking provided in relation to Andras Horvath is that he will be detained in Szombathely prison throughout all proceedings in Hungary, both pre-trial and, after any conviction, for the duration of any sentences imposed listed in the EAW."
Conclusion on Article 3
"E. Without doubting the good faith of the undertaking regarding three square metres, are there any reason to think that from time to time it will not be possible to keep it?
Answer: if the regulation concerning the Szombathely prison remains as it is today, there is a high likelihood that the undertaking can be kept."
"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 a responsible senior official of a Council of Europe or EU state will be complied with unless there is cogent evidence to the contrary."
I then referred to CJEU case law and the Framework Decision preamble and comments which are similar in nature.
Article 8: argument and conclusion
"[The judgments] made clear that the requested person would have to demonstrate that the impact of extradition went beyond the normal and often unfortunate consequences of extradition. The threshold is set high and there would have to be 'striking and unusual' facts for such a challenge to succeed."
Mr Knowles submits that the DJ therefore adopted a legal test that the requested person had to show that there were "striking and unusual facts" before the Article 8 challenge could succeed, and that that was as a matter of law a wrong test.
" ... woefully short of satisfying the necessary test to demonstrate that it would be Article 8 disproportionate for this court to order his return and is therefore bound to fail."