Stop The Forced Return of a Protected Person to Persecution and Worse!

Call Minister of Justice Rob Nicholson and Urge that He Stop Extradition of Roma Refugee Adolf Horvath, the Son of a Holocaust Survivor and a Person Found to be in Need of Protection by the Canadian Government

FACTUAL BACKGROUND
ADOLF HORVATH AND HIS FAMILY
Adolf Horvath is a 51-year old father who fled repeated physical assaults and persecution in Hungary based on his Roma ethnicity. During World War II, his mother had been imprisoned in a Nazi slave labour camp because of her Roma ethnicity. Horvath’s wife, Erika, also experienced physical assaults in Hungary at the hands of the same skinheads and police officials who beat Adolf.

The family came to Canada in 1999. Mr. Horvath was found to be a person in need of protection, and his wife and son were found to be refugees. They were trying to begin a new life in this country when the latest chapter in their nightmare began.

The couple’s young son experienced severe trauma in witnessing the vicious assaults against his parents. He was present in his own home when Adolf was repeatedly stabbed in the stomach and his mother was hit in the head, forcing both parents’ hospitalization. A psychological assessment says their son suffers “emotionally and psychologically from the aftermath of living in an environment of horror and terror.” Given the ongoing fear he experiences that his father may be returned to Hungary, his life is marked by an ongoing sense of terror. Ongoing efforts to treat his post traumatic stress disorder (PTSD) are threatened by the instability in his life.

All members of the family have been diagnosed with post traumatic stress disorder and depression, conditions which have only worsened as a result of the Canadian efforts to send Mr. Horvath back to Hungary. Indeed, when a half dozen Canadian officers showed up at the house to arrest Mr. Horvath on the extradition request, it revived painful memories of attacks against the family in Hungary.

MR. HORVATH: A PERSON IN NEED OF PROTECTION
In the Pre-Removal Risk Assessment (PRRA) conducted by the Canadian Border Services Agency, an officer found that Mr. Horvath faces “more than a mere possibility of persecution in Hungary based on his Roma ethnicity.” Much Canadian court jurisprudence related to these issues equates “more than a mere possibility” with “a serious possibility.”

The (PRRA) officer accepts that Horvath “has repeatedly in the past been subjected to various forms of abuse from criminals who included police officers.”

The PRRA officer concludes, “I am of the opinion that the applicant’s unique position as a sophisticated, successful, and prosperous Roma makes him a target for the type of abuse he has described having endured in the past. I am further satisfied that such abuse, in the form of repeated physical assaults, threats, and foul play constitutes persecution. Such persecution is motivated by the applicant’s Roma ethnicity. I have carefully considered the documentary evidence on the availability of state protection for Roma and find that, although state protection is generally available, such availability is sufficiently questionable that a person in the applicant’s unique position might be discriminated against when seeking such protection. Given the applicant’s past experiences with the police and judicial system, I am satisfied that state protection would not be forthcoming to this particular applicant.”

Significantly, the Minister of Immigration did NOT seek to contest this finding. By law, persons in need of protection cannot be returned to the country they fled.

A CANADIAN ABUSE OF PROCESS
Mr. Horvath’s Canadian lawyers sought to prevent the extradition by launching an abuse of process motion, arguing that there was no legal justification to go through a process that could result in handing Mr. Horvath over to Hungarian authorities when he had already been found by Canada to be a person in need of protection.

The decision made by immigration authorities should have prevented the extradition from going ahead, since a surrender of Mr. Horvath would be an illegal, prohibited act. A lawyer for Immigration Canada actually was invited to the extradition hearing and informed the court that the decision of the Pre-Removal Risk Assessment officer was valid and was not going to be reviewed.

Unfortunately, the extradition judge refused to accept the argument, even though he confessed in the hearing, “Part of my problem is -- I know nothing about immigration whatsoever, and it doesn’t seem to me to be overly relevant in the extradition context.” Indeed, the judge incorrectly came to the conclusion that rather than facing a risk that was “more than a mere possibility,” he wrote that Mr. Horvath only faced a mere possibility of abuse.

The judge also made numerous statements that were insensitive with respect to Mr. Horvath’s Roma heritage, and also criticized the decisions of higher court judges whose decisions were binding on him. Both give rise to a potential apprehension of bias.

THE EXTRADITION PROCESS: FLAWED AND UNFAIR
As Manitoba Queen’s Bench Justice Steel wrote in a 1999 extradition case, “evidence at an extradition hearing should be accepted even if the judge feels it is manifestly unreliable, incomplete, false, misleading, contradictory of other evidence or the judges feels the witness may have perjured themselves.”

As constitutional law expert Gary Botting points out, “The overall scheme of the legislation is so patently unfair that eventually the Supreme Court of Canada should strike down significant parts of the Extradition Act, especially those parts dealing with evidence, and with the perceived apprehension of bias of the Minister of Justice/Attorney General in being both the prosecutor and the judge at every stage of the procedure.”

While this is an unfortunate Canadian legal reality, it does not make the situation just or right.

TRUMPED UP CHARGES THAT WERE RECANTED
In 1998, Mr. Horvath was the subject of a series of trumped-up charges in Hungarian court, charges that now form the basis of the extradition request. The two alleged complainants in the case both testified at an uncompleted trial that they were pressured to provide incriminating statements against Mr. Horvath. The police claimed that Mr. Horvath, after lending money to the complainants, used strong-arm tactics to get the loans paid back. Yet as the Court record from Hungary shows, one complainant testified that if he agreed to incriminate Mr. Horvath, he would be offered a plea bargain on charges he was facing: “I thought it meant that if I testify against him they would set me free because they [police] wanted [Horvath] out of circulation.” He later says that he was told forgery charges against him would be dropped if he chose to testify against Mr. Horvath. Another complainant said there was no threat from Mr. Horvath, and that he did not ever recall telling police that there had been one. He testified: “threats have never been in question.”

The complainant added: “I wish to withdraw my previous testimony that was ‘forced’ out of me,” one of the men stated in court, adding “that in a strange situation, like the one when I was questioned, one would have signed anything....The whole thing which is recorded in my testimony has never happened. In my opinion, it is a fabrication; the whole thing is a ridiculous fabrication...These things have not happened to me.”

When asked why he would make up stories about Mr. Horvath, the complainant replied, “When the policemen examined or questioned me, they told me more than once that I could be in serious trouble if I am not going to assist them.”

Ten years later, the Hungarian judicial system (and, specifically, a judge known widely as a “Roma-hater,”) are seeking the forced return of Horvath to answer the trumped-up charges and, no doubt, face further persecution.

WHAT MR. HORVATH FACES IF RETURNED TO HUNGARY
After an oral hearing before a PRRA officer, Mr. Horvath was found to be a person in need of protection based on his credible fears of racist attacks and persecution based on his Roma heritage. Obviously, sending him back to a country he fled will open the door to a serious abuse of his human right to be free of persecution and torture and other forms of cruel and unusual treatment.

The Hungarian police and judicial system are generally recognized as rife with corruption and tainted with the anti-Roma bias that is endemic to Hungary and much of Europe (over 500,000 Roma were murdered by the Nazis, and discrimination and violence against the Roma people is widespread to this day, from unequal access to housing, health, education, employment, and public places (such as restaurants and bars) to lengthy pre-trial detention that does not normally apply to non-Roma).

The U.S. State Department’s annual human rights report on Hungary noted on March 11, 2008, that “Human rights and Romani organizations claimed that Roma received unequal treatment in the judicial process...Reports of police abuse of Roma were common, but many victims remained fearful of seeking legal remedies or of notifying NGOs.
In 2007, the UN Committee on the Rights of the Child expressed concerns about the prevalence of discriminatory and xenophobic attitudes, in particular towards the Romani population. The Committee noted that Romani children were especially stigmatized, excluded and impoverished in relation to the rest of the population because of their ethnicity. The Committee expressed concern at the arbitrary segregation of Romani children in special institutions or classes.”

Under a section of the U.S. State Department’s annual human rights report entitled “Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment,” it notes, “The law prohibits such practices; however, nongovernmental organizations (NGOs) continued to report that police harassed and used excessive force against suspects, particularly Roma. Reports of police abuse of Roma again increased somewhat during the year, but NGOs considered the increase to reflect increasing willingness of Roma to report such abuses....During the year police were implicated in a number of criminal acts, including corruption, theft, robbery, rape, bribery, and kidnapping, that severely undermined public confidence in law enforcement agencies. The ensuing scandals led to the dismissals, in May, of the HNP [Hungarian National Police] Chief, the chief of the Budapest police, and the head of REBISZ. The minister of justice and law enforcement resigned. In the same month, the head of the National Security Office (NBH) also resigned following scandals involving the intelligence and security services.” The report also notes that racist and anti-Roma postings were made on the website of the Hungarian National Police.

(Adolf Horvath’s former home city is Dunaujvaros. Shortly after Adolf and his family fled to Canada the Head of the Dunaujvaros Police Headquarters anti-crime department was detained (2001) http://www.budapestsun.com/cikk.php?id=15613
-In 2003 April 13 policemen and 12 civilian were arrested for blackmailing in Dunaujvaros. See article in Hungarian http://www.dunaujvaros.com/tallozo/hirek/030410_het.htm
In May, 2007, the country’s justice and police minister resigned after some of the country’s top officers were accused of theft and rape (see http://www.reuters.com/article/idUSL20315195.

Eight months after a new justice minister was appointed, he was fired, in part for his failure to protect MPs whose homes were attacked (see http://www.politics.hu/20080222/justice-minister-sacked-for-failing-to-protect-socialists)

Such reports are consistent with the October 25, 2007 Amnesty International assessment of anti-Roma discrimination in Europe that concluded “Roma were often the victims of torture or other ill-treatment by law enforcement officers across the region. Roma were also the victims of racist attacks during which they were not adequately protected by the police. The authorities in many countries failed to fulfil their domestic and international obligations towards the Roma community.”

A January 30, 2008 Deutsche Presse-Agentur news story entitled “Neo-Nazism on the rise in eastern Europe” documents the rise of such far-right groups in Hungary, including the emergence of groups dressing much like Hungarian fascists of the 1940s and using coats of arms similar to Nazi-aligned political parties. Such groups have made no secret of their racist attitudes towards the Roma.

MINISTER OF IMMIGRATION CHANGES A DECISION
In a bizarre move, and without any evidence to show that conditions had changed in Hungary such that Mr. Horvath would no longer be at risk if surrendered, then Minister of Citizenship and Immigration Monte Solberg delivered an opinion to the Justice Minister stating that Horvath could be returned to Hungary because of a perceived improvement in conditions. There was no proof provided, and the opinion was written by someone with no expertise in the area of risk.

This is strange because the PRRA determination essentially becomes the opinion of the Minister. Why would the Minister seek and deliver an opinion that contradicts his first opinion?

The Minister’s new opinion essentially states that since there are human rights groups that stand up for the Roma, someone like Mr. Horvath could seek their assistance. The argument fails though because such groups cannot provide protection from acts of violence committed by skinheads or anti-Roma elements within the police forces.

HOW CANADA CAN REVERSE THE DECISION
Sending a person in need of protection to a country where he would face further persecution surely “shocks the conscience” of the Canadian people.

Under the Extradition Act (section 44 (1), the Minister of Justice has the capacity to refuse an extradition if satisfied that, “(a) the surrender would be unjust or oppressive having regard to all the relevant circumstances; or (b) the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or status or that the person’s position may be prejudiced for any of those reasons.

Mr. Horvath has been targetted by a Hungarian judicial system that international human rights groups, as well as the U.S. State Department, have acknowledged is rife with corruption and bias, in particular towards the Roma people. A significant body of evidence shows Mr. Horvath has been targetted because of his Roma heritage, and that the charges against him are baseless and being pursued by a judge with a known anti-Roma bias.

The effect of threatening to send Mr.. Horvath back to Hungary has been devastating on him and his family; executing that threat would be disastrous for the health of his wife and son.

The ends of justice are in no way served by returning him to Hungary.

MR. HORVATH’S CURRENT STATUS
After Mr. Horvath was arrested in Toronto on the extradition request in 2003 (yet another traumatizing event for him and his family), he was released on bail with the stipulation that he periodically report to a Toronto detention facility where he would stay for a few days pending the outcome of certain court decisions. On each occasion, his wife drove him to the jail, dropped him off, and he would spent three or four days behind bars until the decision came out.

On March 19, Mr. Horvath -- expecting a decision on whether the Supreme Court of Canada would hear his appeal and correct the many judicial errors that were made in concluding he could be sent back to face persecution in Hungary -- was driven to the jail by his wife. After she dropped him off and he walked to the jail’s entrance, he disappeared, no doubt fearing that a negative court decision would mean his imminent forced removal to persecution and worse in Hungary.

While this places him and his family in a problematic legal position, it is perhaps understandable that he is taking a risk in the hope that he will not be sent back to a country where he is likely to be targetted for further persecution, physical beatings, and lengthy, unjustified imprisonment.

His wife and son are now extremely worried since they do not know where Adolf is. They are appealing to the Minister of Justice to reconsider his decision and put an end to this nightmare, one that can either end happily by allowing the family to get on with their lives, or one that could end quite badly if Mr. Horvath is returned to the country from which the Canadian government has concluded he is a person in need of protection.

The Federal Court of Canada Gears Up for a New Round of Secret Trialsas Canada’s 3-D Strategy -- Detention (Indefinite), Draconian ControlOrders, and Deportation to Torture -- Remains the Order of the Day

(An update from the Campaign to Stop Secret Trials in Canada)

June 2, 2008, Toronto -- There is something beyond surreal aboutsitting in a room where individuals who are bound for torture areseemingly being treated so, er, politely, by those who are speedingtheir rendition to the dungeon.

Could Orwell have predicted such a scene: judges who are facilitatingthe judicial phase of the rendition to torture speaking about the(undefined and certainly unseen) rights of the individuals who aredoomed by a process so patently unfair that the Supreme Court of Canadaunanimously declared it unconstitutional?

Yet in another of an endless series of “case management” conferenceslast week, Federal Court Chief Justice Allan Lutfy and Judge Simon Noelappeared once again to be doing just that, enacting out rolesreminiscent of the prison farm overseers from the 1960s classic CoolHand Luke. Viewers likely need no reminder of the chilling manner inwhich leg irons beatings, and other forms of corporal punishment wereinflicted on prisoners who, in the words of the tobacco-chewing prisonboss played by Strother Martin, were subject to this abuse “for yourown good.”

In this instance, Lutfy and Noel are trying to force-feed their ownvision of how the secret forced-removal-to-torture proceedings shouldgo forward, regardless of the wishes of those subject to the processand their counsel. This is being done “for your own good,” becausesecret trials and deportations to torture must move forward in the nameof natural justice.

THINKING POSITIVE: A NEW APPROACH TO TORTURE?
After all, this IS Canada, and no one, repeat, no one, getssubcontracted to torture until we can ensure that their rights arebeing respected and, once the rendition order is made, we can all patourselves on the back. Why? Because we are ensuring that Parliament’swill is being done, even though the current version of securitycertificate legislation was condemned in House and Senate hearings byleading legal associations as unconstitutional, discriminatory,patently unfair, and unlikely to survive a Charter challenge.

Rather than spitting chewing tobacco, though, Lutfy is far morerefined, playing instead in the realm of new age cliché and what canonly be described as poorly disguised tips from a charlatan management101 course. What else can one say about an atmosphere the hosts attemptto create that seems more akin to a social tea than the thinly veiledinquisition that it is and has been for decades?

Indeed, on this fine day, the detainees, both in person and calling infrom their house arrest and from the Guantanamo North facility inKingston, Ontario, are thanked for joining us. Do they have any otherchoice? They are all asked particular questions as a means ofreassuring them that their rights are being looked out for by the guysin the black robes.

An objective observer might find a disconnect between all this talk ofrights and justice and the inability of those subject to secrethearings and deportation to torture to determine the timeline of theirdefence in an indefensible process. The goal of the Federal Court is tohave these cases wrapped up and swept away by the end of the year.Despite the fact that such cases have proven in the past to be deeplycomplicated, time consuming, and very expensive to conduct (oftencondemning the defence lawyers who take these cases to the door ofbankruptcy while government lawyers never worry about their costs), theword from the court is clear: we must move forward at any cost.

A PATENTLY UNFAIR PROCESS
As other case management sessions have begun, the Federal Court seemsto have adopted the Walmart daily cheer to open its gatherings. Lutfy,referencing himself and his sidekick Noel, proclaims, “Our role is tothink positive.” Which is a good thing, because if you really thinkabout what these hearings are about -- the indefinite detention, thetwo-tier justice that affords the detainees the lowest standard ofjustice in Canada, the cases built on racist profiling and suspicionsabout some alleged future thought crime based on secret suspicions fromthe discredited CSIS spy agency -- it might just wipe that smile offyour face. It’s a smile Lutfy self-references as well. In Toronto andMontreal, we sit by a speaker phone and are told every once in a whileby Lutfy that he himself is smiling, because we need to be positive.

Yet these are death penalty cases in a country that subcontracts itsexecutions and torture. All the men are at risk of torture and death atthe hands of the Syrians, Egyptians, Algerians, and Moroccans. We donot pull the trigger or apply the electric shock and simulateddrowning; we just provide the human materiel needed for suchatrocities.

At the heart of this late May gathering is a discussion on how to moveforward with the secret hearings that the men and their lawyers willnot be allowed to attend. Although “special advocates” will be allowedinside the secret hearing, they will not have been properly instructedby the detainees, because the detainees do not know the case. The SAs,as the special advocates are lovingly referred to, will be unable todiscuss the case after seeing the secret file, and there is noguarantee the secret file is in any way complete, since CSIS tends topresent only information that bolsters its case, and nothing that wouldexonerate an individual of suspicion.

DEFENCE LAWYERS FACING DOWN BANKRUPTCY
The lawyers who handle the public side of these cases are asking thattheir funding be equivalent to the pay being given special advocates.Rather than grant this on consent, the government is likely to opposeit, and there will need to be a hearing on the matter before the secrethearings can commence. Lawyers representing the men in the public casessaid they would decline to take them on unless they could get properfunding. The detainees who were at the conference agreed with theircounsel on this point, and had no problem that this would delay theactual removal to torture hearing.

Lutfy, however, was livid that such a proposal might stall therendition hearings. “It continues the vicious cycle of waiting untilthe funding issue is decided, and the delay would be an affront to thelaw passed by Parliament,” he declares. “We need to move forwardexpeditiously in the interests of natural justice.”

Yes Virginia, they really do talk about natural justice in thisKafkaesque nightmare. But then they shift gears and go back to theWalmart cheer.

IT’S ALL ABOUT THE ENERGY, DUDE
“Don’t you feel the energy I have?” Lutfy asks one of the lawyers, whois trying in vain to inject an air of reality into this Alice inWonderland theatre piece. The lawyer says it probably makes sense todeal with the issue of funding since that will impact on the rest ofthe day’s agenda; he is told to sit down and think about Mr. Lutfy’senergy.

The next part of the agenda deals with the naming of designated judgesfor the new secret hearings. Interestingly, there are no new judges whomight bring a fresh perspective on these cases (despite the obviousflaws and near impossibility of winning one of them). The judges haveall made negative findings about the individuals subject to the currentprocess, and appear to buy the government’s thesis that these men arein some manner or another not to be trusted to be returned to theirfamilies and get on with their lives. Whether that will change if thejudges actually hear some cross examination behind closed doors remainsto be seen. But one cannot help but wonder whether a possibleapprehension of bias against the detainees (as well as the potentialunwillingness by members of the court to contradict the prior findingsof their fellow judges) might cast a certain air of doubt over theirability to approach these cases in a completely unbiased fashion.

Then again, even if these judges feel the case is less strong than aprior judge has concluded, it doesn’t matter, because the standards ofproof are so low that pretty much anyone can be found to be a threatbased on the process as currently set out.

WHAT WOULD A SANE PERSON REALLY SAY ABOUT THIS PROCESS?
Meanwhile, Lutfy keeps chiming in about the need to move on, notrecognizing that the most expeditious way to move on is to settle thefunding issue. “If any sane person looked at this process they’d wonderabout whether we know how to run our business,” he states at one point,ironic given that a look at the “new” law shows it is essentially theold law, and that every major legal association in Canada condemned itas unconstitutional before it was passed by the gutless Liberal Partyin conjunction with the Tories.

“We’ve got to work together for the interests of justice for the namedperson,” Lutfy keeps reminding everyone on a regular basis, perhapsforgetting that his unprecedented decision to place the baseless andunfounded suspicions from CSIS on the Federal Court’s website lastFebruary did a huge disservice to the rights of the named persons.

In good tag-team fashion, the gavel goes over to Noel, who chimes inwith his own page from the “How to be a Good Manager” self-helpworkbook. “There has to be humour,” he opines. “Without humour, we’renot going anywhere.” It must be a terribly reassuring thought forHassan Almrei, who sits in solitary confinement in a multi-milliondollar facility watched by 17 staff. Equally reassuring for the fourmen under draconian house arrest (Mahmoud Jaballah, Mohamed Harkat,Mohammad Mahjoub, Adil Charkaoui) whose loved ones are both jailers andjailed. What a joke, eh? Perhaps, like those condemned to crucifixionin Monty Python’s Life of Brian, all these detainees and their lovedones really need to do is, as the catchy tune goes, “Always look on thebright side of life.”

“It’s all gonna work out,” Lutfy closes the conference, a reassuringstatement to those holding the whips and chains in Egypt and Syria,awaiting the new rendition bait.

PEOPLE POWER RESTRAINS CSIS
But work out for whom? A Federal Court that has always maintained thesecurity certificates are okay (only to be resoundingly contradicted bythe Supreme Court of Canada)? A spy agency whose incompetence, bias,and racist profiling remains exposed to public view every day these menremain in Canada? Or the detainees and their loved ones, who have yetto have a real trial where charges are laid, evidence presented, and acase needs to be proven beyond a reasonable doubt?

The answer ultimately lies with all of us. As advocates working forthe rights of those subject to Canada’s rendition to tortureproceedings, we see daily the pain and suffering experienced by thesemen, their families, and their communities. And so it is perhaps a taddifficult to adopt the Walmart-style cheer and the “power of positivethinking” approach adopted by the Federal Court.

Nevertheless, we can look back at our work of the past seven years andnote that the public campaigning around this issue has had a positiveeffect in constraining CSIS’s ability to wreak this particular form ofterror. After all, CSIS used to issue between 1 and 3 certificates ayear from 1991 to 2003. Yet since May, 2003, they have only issued 1certificate (and even that one seemed terribly convenient, at a timewhen the need to scare the Supreme Court into accepting the process wasquite pressing). This is not because the “security” climate changed,but because the political climate around these outrageous hearings haschanged.

We have shown that grass roots education, exposure, and politicalaction can change the climate. It ultimately remains up to all us totruly put an end to this process. Stay tuned!

Getting Involved:

1. Sign up for information updates on secret trials in Canada anddeportations to torture at tasc@web.ca

2. Contribute to the costs of our campaign. Cheques can be made out toHomes not Bombs and sent to PO Box 73620, 509 St. Clair Ave. West,Toronto, ON M6C 1C0.

3. Contribute to a special fund for the special needs of the familiessubject to secret trials and deportation to torture. Cheques can bemade out to the same group as above and earmarked “Esperanza Fund”