Minister for Justice and Equality v Horvath

• Jurisdiction: Ireland
• Judge: Denham C.J.
• Judgment Date: 02 March 2017
• Neutral Citation: [2017] IESC 15
• Date: 02 March 2017
• Court: Supreme Court
• Docket Number: Appeal No. 536/2013 Cross Appeal No. 32/2014 High Court Record No. 2011/184

[2017] IESC 15

THE SUPREME COURT

Denham C.J.

Denham C.J.

O'Donnell J.

MacMenamin J.

Dunne J.

O'Malley J.

Appeal No. 536/2013

Cross Appeal No. 32/2014

High Court Record No. 2011/184

Between/

The Minister for Justice and Equality

Applicant/Appellant

and

Ferenc Horvath

Respondent

European arrest warrant – Point of law – Surrender – Appellant seeking the surrender of the respondent to Hungary – Whether High Court was correct in law in its decision that the surrender of the respondent for the purposes of a second instance prosecution fell within the scope of an application of s. 45 of the European Arrest Warrant Act 2003

Facts: The appellant, the Minister for Justice and Equality, appealed to the Supreme Court from the judgment of the High Court (Edwards J) delivered on the 28th November, 2013, which refused to surrender the respondent, Mr Horvath, to Hungary. On the application of the Minister, the High Court judge certified that the said judgment involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken from the said judgment on the following point: Whether the High Court was correct in law in its decision that the surrender of the respondent to Hungary for the purposes of a second instance prosecution fell within the scope of an application of s. 45 of the European Arrest Warrant Act 2003, as amended. The Minister raised the following grounds of appeal: (i) the trial judge erred in law in his conclusion that the surrender of the respondent was prohibited by s. 45; (ii) the judge accepted that the surrender of the respondent to Hungary was sought for the purposes of prosecution and that the respondent was presumed innocent; (iii) the judge erred in fact in finding that the respondent was a convicted person, in Hungarian law, such that an undertaking was required by s. 45; (iv) the judge erred in law in finding that an undertaking was required by s. 45; (v) the findings of the judge was against the weight of the evidence.

Held by Denham CJ that there was no right of general appeal to the Supreme Court from the decision of the High Court in this case. Denham CJ noted that as the High Court decided the case by reference to the un-amended s. 45, and the Minister argued that the amended version of s. 45 applies, a situation arose where the Minister wished to argue a ground which was not argued in the High Court. Denham CJ held that it was not in accordance with the jurisprudence of the Court to consider an appeal on issues not argued in the High Court, and further which were not part of the certificate providing for appeal to the Court, and nor were identified in the grounds of appeal. On the issue of the application of s. 45 of the European Arrest Warrant Act, 2003, as amended, (prior to 2012) Denham CJ affirmed the decision of the High Court that the surrender of the respondent was prohibited in the absence of an undertaking as required by s. 45.

Denham CJ held that the appeal should be dismissed.

Appeal dismissed.

Judgment delivered on the 2nd day of March, 2017 by Denham C.J.

1 This is an appeal by the Minister for Justice and Equality, the applicant/appellant, who is referred to as ‘the Minister’, from the judgment of the High Court (Edwards J.) delivered on the 28th November, 2013, which refused to surrender Ferenc Horvath, the respondent, referred to as ‘the respondent’, to Hungary.

Certificate

2 On the application of the Minister, the learned High Court judge certified that the said judgment involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken from the said judgment on the following point:-

Whether the High Court was correct in law in its decision that the surrender of the respondent to Hungary for the purposes of a second instance prosecution fell within the scope of an application of s. 45 of the European Arrest Warrant Act of 2003, as amended, (hereinafter referred to as ‘the Act of 2003’).

Grounds of Appeal

3 The Minister raised the following grounds of appeal:-

(i) The learned trial judge erred in law in his conclusion that the surrender of the respondent was prohibited by s. 45 of the Act of 2003.

(ii) The learned trial judge accepted that the surrender of the respondent to Hungary was sought for the purposes of prosecution and that the respondent was presumed innocent. Notwithstanding these findings, the learned trial judge held that an undertaking was required by s. 45 of the Act of 2003.

(iii) The learned trial judge erred in fact in finding that the respondent was a convicted person, in Hungarian law, such that an undertaking was required by s. 45 of the Act of 2003.

(iv) The learned trial judge erred in law in finding that an undertaking was required by s. 45 of the Act of 2003.

(v) The findings of the learned trial judge was against the weight of the evidence.

4 The respondent took no issue on the relevant facts as set out in paragraphs 1.1 to 1.8 of the Minister's submission. Thus, I gratefully adopt the said description, being as follows:-

‘1.1 A European arrest warrant dated 27th May 2010 was transmitted to the State on 16th December 2010 and was endorsed on 18th May 2011 after the receipt of additional information dated 11th May 2011. The offences for which the respondent is sought involve corruption in the respondent's capacity as a police officer. This warrant was executed on 20th October 2011 and is the subject of these proceedings.

1.2 The warrant the subject of the proceedings is the third warrant issued and transmitted to the State in respect of the respondent. The first warrant was issued on 12th June 2007 and endorsed by the High Court on 5th September 2007. Peart J. directed the surrender of the respondent in respect of 13 offences by Order dated 25th November 2008, and refused to direct the surrender of the respondent in respect of four offences by Order dated 19th December 2008.

1.3 After the hearing of the appeal against surrender on the first warrant, but before delivery of judgment by the Supreme Court, a second warrant was received in the State. Upon application on behalf of the Central Authority, the Supreme Court vacated the orders endorsing the first warrant and directing the surrender of the respondent. In those circumstances, judgment of the Supreme Court which had been reserved was not delivered. The second warrant was not endorsed by the High Court. The third warrant was endorsed on 18th May 2011, together with additional information dated 11th May 2011.

1.4 The issuing judicial authority issued the third warrant, which is described in the additional information dated 16th December 2010 as ‘a corrected warrant’. It is stated therein that the respondent is sought ‘for criminal proceedings and not for enforcement of a sentence’. It is further explained that he is sought for the purposes of an appeal or ‘second instance’ criminal proceeding. This was reiterated in the additional information dated 11th May 2011, which states:

‘- the named person was convicted at first instance and that a sentence of 3 years and 6 months was imposed on him;

- the named person is now sought for the purposes of prosecution and not to serve the above sentence imposed on him at first instance;

- the named person is now sought for the purposes of an appeal hearing and this appeal is a full hearing of the case.’

1.5 It is common case that there was a first instance trial and that the respondent was found guilty and a sentence imposed and that he was not present at that time. It is also common case that the respondent did not have actual notice of the first instance trial in advance thereof. Counsel appearing on behalf of the respondent (but not appointed by him) appealed against the first instance decision. The issuing judicial authority clearly states that the first instance decision is not final or executable and that the respondent is sought for criminal proceedings or prosecution at second instance. In the additional information dated 8th August 2013, it is stated that the respondent is regarded as a defendant and that he has the benefit of the presumption of innocence. While the affidavit of Magyar Gabor, of 12th July 2012, states that the third warrant purports to be for the purposes of prosecution, the statement of the issuing judicial authority to that effect is not disputed on behalf of the respondent by Mr. Gabor.

1.6 By Order made the 28th November 2013 Edwards J. refused to direct the surrender of the respondent to Hungary on the ground that section 45, European Arrest Warrant Act, 2003, applied to the request for surrender and no undertaking for a retrial had been provided by the Hungarian Authorities.

1.7 It was held by Edwards J. that the respondent was sought for prosecution, and not to serve a custodial sentence or detention order which had been imposed on him.

1.8 A certificate of leave to appeal was granted on 5th December 2013.’

Chronology

5 A chronology of the events relevant to this appeal is set out in Appendix A attached to this judgment.

Law

6 Section 45 of the Act of 2003, as amended, but prior to the amendment of 2012, provided:-

45 – A person shall not be surrendered under this Act if –

(a) he or she was not present when he or she was tried for and convicted of the offence specified in the European arrest warrant, and

(b) (i) he or she was not notified of the time when, and place at which, he or she would be tried for the offence, or

(ii) he or she was not permitted to attend the trial in respect of the offence concerned, unless the issuing judicial authority gives an undertaking in writing that the person will, upon being surrendered –

(I) be retried for that offence or be given the opportunity of a retrial in respect of that offence.

(II) be notified...