The Minister for Justice and Equality v Henn

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 23 May 2019
• Neutral Citation: [2019] IEHC 379
• Court: High Court
• Docket Number: [2018/69 EXT]
• Date: 23 May 2019

[2019] IEHC 379

THE HIGH COURT

Donnelly J.

[2018/69 EXT]

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

ZOLTAN HUBA HENN

RESPONDENT

European arrest warrant – Surrender – Risk of exposure to inhuman or degrading treatment – Applicant seeking the surrender of the respondent on foot of a European arrest warrant – Whether the respondent’s surrender was prohibited because there was a real risk that he would be exposed to inhuman and degrading prison conditions

Facts: Judicial authorities in the Republic of Hungary applied for the surrender of the respondent, Mr Henn, on foot of two separate European Arrest Warrants (EAWs). In respect of the EAW dated 19th June, 2018, the High Court (Donnelly J) sent a further request for information about the sentences for which his surrender was sought and the number of offences for which he was sought. As the response of the issuing judicial authority did not clarify the sentences for which his surrender was sought, Donnelly J refused to surrender him in respect of that EAW in proceedings 2018/328 EXT. This judgment therefore only dealt with the EAW dated 20th October, 2016, in proceedings 2018/69 EXT. The only remaining objection was whether his surrender was prohibited because there was a real risk that he would be exposed to inhuman and degrading prison conditions in Hungary.

Held by Donnelly J that, in all the circumstances of this case, there was no basis for the Court to reject the assurances that had been given as to conditions in the prisons in which the respondent would be held in Hungary and the assurances that his rights under Article 3 ECHR and Article 4 of the Charter would be respected. Donnelly J therefore rejected the respondent’s claim that his surrender was prohibited under s. 37 of the European Arrest Warrant Act 2003 on the basis of a real risk that on surrender he would be exposed to inhuman or degrading treatment.

Donnelly J held that she would make an order for the respondent’s surrender to such other person as was duly authorised by the issuing state to receive him.

Order granted.

JUDGMENT of Ms. Justice Donnelly delivered on the 23rd day of May, 2019

1 This judgment is the final judgment concerning applications by judicial authorities in the Republic of Hungary (‘Hungary’) for the surrender of the respondent on foot of two separate European Arrest Warrants (‘EAW’). I have given ex tempore and reserved judgments dealing with the many points of objection filed on his behalf. On the 21st March, 2019, I gave a written judgment which dealt with a large number of objections made on behalf of the respondent in respect of one of those European arrest warrant. In respect of the EAW dated 19th June, 2018, I sent a further request for information about the sentences for which his surrender was sought and the number of offences for which he was sought. As the response of the issuing judicial authority did not clarify the sentences for which his surrender was sought, I refused to surrender him in respect of that EAW in proceedings 2018/328 EXT.

2 This judgment therefore only deals with the EAW dated 20th October, 2016, in proceedings 2018/69 EXT. This judgment deals with the only remaining objection: namely whether his surrender is prohibited because there is a real risk that he will be exposed to inhuman and degrading prison conditions in Hungary.

Point of Objection No. 10 – Prison Conditions

3 Under this point of objection, the respondent relied upon the provisions of s.37 of the European Arrest Warrant Act of 2003 (‘The Act of 2003’) to say that his surrender was prohibited on fundamental rights grounds. He submitted that there was a real risk of him being subjected to inhuman and degrading prison conditions in Hungary should he be surrendered on this European Arr#est Warrants.

4 At an earlier stage in the proceedings, this Court made an ex tempore decision that in light of the pilot decision of the European Court of Human Rights (‘ECtHR’) in Varga and Others v Hungary [2015] ECHR 422, further information as to prison conditions was required. The request for information referred to the fact that his surrender was sought in respect of an EAW for prosecution purposes.

5 The request required the following information regarding the specific prison(s) in which the respondent would be detained if surrendered:

‘(a) Can the Hungarian authorities guarantee that Mr. Henn will be held in conditions of detention of at least 3m2 floor space (as understood by the European Court of Human Rights in Mursic v. Croatia application no. 7334/13, decision of 20th October 2016)?

(a) If Mr. Henn is to be kept in conditions of detention of between 3m2 and 4m2 floor space, can guarantees be given in relation to the in cell toilet facilities, in cell ventilation, out of cell activities and access to fresh air that Mr. Henn would have?’

6 A reply was sent to this jurisdiction by the Hungarian central authority dated the 14th November, 2018. The reply contained a letter of the Deputy Director General Security and Incarnation Hungarian Prison Service addressed to the Head of Department at the Ministry of Justice. The Deputy Director General referred in his letter to the request of the British authorities. He also said that the consular and diplomatic staff of the United Kingdom in Hungary could enter upon prior notice the given prison and inspect the circumstances of the prisoner's detention. This Court would not accept guarantees that were clearly addressed to the authorities of another member state.

7 In those circumstances a further request was sent over to ask for such assurances. On the 28th November, 2018 further information was sent over which this time referred to the Irish authorities.

8 The respondent obtained a further report from Dr. Andras Kadar who is the Co-Chair of the Hungarian Helsinki Committee which is a human rights watchdog non-governmental organisation focussing on amongst other matters detention conditions in prisons. He is an attorney who has litigated cases relating to conditions of and treatment in detention in Hungarian prisons before domestic forums and also the European Court of Human Rights. Dr. Kadar had produced an earlier report dated 27th August, 2018 in respect of the conditions. That report as well as the decision in the Varga case had formed part of the basis for the decision of this Court to seek further information about the conditions of detention in which this respondent would be held should he be surrendered to the issuing state.

The letter containing assurances

9 The reply to the s. 20 request came in the form of an initial letter from the issuing state is headed ‘Ministry of Justice Department of International Criminal Law’. It stated that:

‘The Ministry of Justice of Hungary acting as central authority presents its complement to the Department of Justice and Equality and – with reference to your request dated 23rd November, 2018 – has the honour to send the requested supplementary information regarding Zoltan Huba Henn (born in Targu Mures on 28th June, 1973)’.

Then underneath it stated:

‘The Ministry of Justice of Hungary avails itself of this opportunity to express the assurances of its highest consideration’.

10 What is enclosed is a document headed ‘Hungarian Prison Service Deputy Director General Security and Incarceration’. It is said to be the subject guarantee undertaking. It is sent to the Head of Department at the Ministry of Justice of the Department of International Criminal Law and Human Rights, Dr. Tünde Forman. It is signed by Major General Janos Schmehl. The letter lists the respondent's name, place and date of birth.

11 In the letter the Major General stated that:-

‘…. the Hungarian Prison Services continues to undertake the guarantee (bolded in original) of placing the respondent either at the Szombathely National Prison or at the Tiszalok National Prison providing conditions consistent with the European and Hungarian legislation, in accordance with the request of the Irish authorities.’

12 The letter then proceeded to state that:-

‘[u]pon acceptance for placement with the Hungarian Prison Service, the [requested person] will be placed at the Budapest Remand Prison (bolded in original) for the duration of the transfer process, and after that either at Szombathley National Prison or at the Tiszalok National Prison.’

It then states as follows:

‘The information on the guarantee undertaking is registered (both manually and electronically) in the records of the relevant detainees. Making sure that the conditions set out and the guarantee are met from the beginning and throughout the whole duration of the detention is our top priority, including the appropriate circumstances of the detainee in the designated facility or that of his temporary transport. The detainee may be permanently transferred into a facility where the guarantees are not or partially assured, only if the detainee signs a waiver form’.

Thereafter the reply sets out information about all three prisons in which he may be held.

The objections to the letter of assurance

13 At the hearing, counsel for the respondent objected to reliance being placed upon this reply for both procedural and substantive reasons. He relied in the first place upon the decision of the ECtHR in the case of Othman (Abu Qatada) v United Kingdom (2012) 55 EHRR 1, in which the ECtHR stated that inter-governmental assurances could be relied upon to overcome concerns about the real risk of being held in inhuman or degrading circumstances. In particular counsel for the respondent relied upon the statement by the court at para. 186 that the task of the court was to ‘ examine whether the assurances obtained in a particular case are sufficient to remove any real risk’.

14 Counsel for the respondent relied upon the following paragraphs in the judgment in Othman:-

‘187. In any...