Minister for Justice and Equality v Ferenc Horváth

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 05 November 2013
• Neutral Citation: [2013] IEHC 534
• Court: High Court
• Date: 05 November 2013

[2013] IEHC 534

THE HIGH COURT

[No. 184 EXT./2011]

Min for Justice v Horvath

No Redaction Needed

APPROVED

Mr. Justice Edwards

JUDGMENT

BETWEEN/

THE MINISTER FOR JUSTICE AND EQUALITY

Applicant

-AND-

FERENC HORVÁTH

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2(2)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 26

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S20

HENDERSON v HENDERSON 1843-60 AER REP 378 67 ER 313 1843 3 HARE 100

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS PROTOCOL 7 ART 2

EUROPEAN ARREST WARRANT ACT 2003 PART III

MIN FOR JUSTICE v KONCIS UNREP SUPREME 29.7.2011 2011/36/10170 2011 IESC 37

MIN FOR JUSTICE v MAJER UNREP PEART 30.7.2010 (EX TEMPORE)

MIN FOR JUSTICE v GHERINE UNREP EDWARDS 30.11.2012 2012/26/7684 2012 IEHC 535

MIN FOR JUSTICE v TOBIN (NO 2) UNREP SUPREME 19.6.2012 2012/28/8166 2012 IESC 37

BOLGER v O'TOOLE & ORS UNREP SUPREME 2.12.2002 2002/4/725

KROMBACH v FRANCE UNREP 13.2.2001 2001 ECHR 88 (APPLICATION NO 29731/96)

EUROPEAN ARREST WARRANT ACT 2003 S10

GREEN v UNITED STATES 1957 355 US 184

CONSTITUTION ART 40.4.2

MIN FOR JUSTICE v TOBIN (NO 1) 2008 4 IR 42

VANTIVE HOLDINGS & ORS, IN RE 2010 2 IR 118 2009/57/14518 2009 IESC 69

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS PROTOCOL 7

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 5(1)

MCLOUGHLIN, STATE v JUDGE SHANNON & DISTRICT JUDGE O'SULLIVAN 1948 IR 439 1949 83 ILTR 130

EX PARTE M'FADDEN, IN RE JUDGMENTS OF THE SUPERIOR COURTS IN IRELAND 1903 168

G (AN INFANT), IN RE 1960 NI 35

WALSH CRIMINAL PROCEDURE 2002 1154

AG v MALLEN 1957 IR 344

EUROPEAN ARREST WARRANT ACT 2003 S45(A)

EUROPEAN ARREST WARRANT ACT 2003 S45(B)(i)

EUROPEAN ARREST WARRANT ACT 2003 S45(B)(ii)

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

CRIMINAL LAW

Extradition

European arrest warrant - Surrender - Execution for purpose of criminal prosecution - "Non conclusive" conviction in absentia - Jurisdiction - Abuse of process - Rule in Henderson v Henderson - Whether failure to convey fact of conviction amounted to abuse of process - Whether denial of fair trial - Whether surrender sought for purposes of appeal hearing - Whether mala fides on part of requesting state - Whether surrender would deny respondent right of appeal if convicted - Whether respondent would come before court of requesting state as a convicted person - Whether requesting state required to provide undertaking in writing that respondent would be retried - Henderson v Henderson (1843) 3 Hare 100; Minister for Justice v Koncis [2011] IESC 37, (Unrep, SC, 29/7/2011); Minister for Justice v Majer (Unrep, Peart J, 30/7/2010); Minister for Justice v Gherine [2012] IEHC 535, (Unrep, Edwards J, 30/11/2012); Minister for Justice v Tobin [2012] IESC 37, (Unrep, SC, 19/6/2012); Bolger v O'Toole (Unrep, SC, 2/12/2002); Krombach v France (App No 29731/96) [2001] ECHR 88; Greene v US [1957] 355 US 184; Minister for Justice v Tobin [2007] IEHC 15, [2008] IESC 3, [2008] 4 IR 42; In re Vantive Holdings [2009] IESC 69, [2010] 2 IR 118; State (McLoughlin) v Judge Shannon [1948] IR 439; In re G (an infant) [1960] NI 35 and AG v Mallen [1957] IR 344 considered - European Arrest Warrant Act 2003 (No 45), s 10, 13, 16, 20, 37 and 45 - European Union Council Framework Decision on the European Arrest Warrant of the 13th June 2002, arts 2, 5 and 26 - Constitution of Ireland 1937, Art 40.4.2 - European Convention on Human Rights and Fundamental Freedoms 1950, art 6 - Surrender refused (2011/184EXT - Edwards J - 5/11/2013) [2013] IEHC 534

Minister for Justice and Equality v Horvath

Facts: The Court considered how to treat the respondent who had been the subject of previous arrest warrants and who having been tried in absentia was now subject to a non-conclusive conviction and sentence and was the subject of a pending appeal which was not initiated by the respondent without any instructions from him. The Court considered whether he would be regarded as wanted for the purposes of conducting a criminal prosecution when already subject to conviction and sentence. The respondent alleged that it was an abuse of process to subject him to the same case as made before the High Court and Supreme Court, in breach of his rights pursuant to Article 6 ECHR. He also alleged that the surrender was prohibited pursuant to s. 45 of the Eruopean arrest warrant Act 2003, as amended.

Held by Edwards J. that as the Court was not in receipt of the undertaking required by s. 45, it would refuse to make the order sought pursuant to s. 16 of the Act 2003, as amended. The accused had the benefit of the presumption of innocence and his task was to persuade the Court that his conviction was wrong. He did not come to Court as an innocent person and remained convicted. The Hungarian authorities had expressly stated that no undertaking would be provided pursuant to s. 45 and the Court was left with no choice but to uphold the s. 45 objection and refuse to surrender the respondent.

1 JUDGMENT of Mr Justice Edwards delivered on the 5th day of November 2013

Introduction

2 This case raises a number of complex and interesting questions concerning the Court's jurisdiction to execute a European arrest warrant that purports to seek the surrender of the respondent for the purposes of conducting a criminal prosecution in certain somewhat unusual circumstances. Those questions include:

3 · How is this Court to treat the respondent who, having been tried in absentia under the law of the issuing state, is now the subject of what is described under the law of that state as a "non-conclusive " conviction and sentence by a court of first instance, which is not final, and which is the subject of a pending appeal (which it is contended will amount to a full re-hearing) to a court of second instance, which appeal was not initiated by the respondent but rather by his state appointed defence lawyer without any instructions from the respondent, and which appeal the respondent has no intention of prosecuting unless forced to return to the issuing state?

4 · Can the respondent, whose surrender is sought so that the said appeal can proceed, be regarded as being wanted "for the purposes of conducting a criminal prosecution", when he is already the subject of conviction and sentence, albeit that the conviction and sentence is characterised under the law of the issuing state as "non-conclusive"?

Background to the Present Proceedings

5 The background to the present proceedings is extraordinary and unprecedented in this Court's experience and to the best of its knowledge the warrant presently before the Court is the third in a series of European arrest warrants issued by the requesting state (Hungary) in respect of the same offences. For the avoidance of confusion it is proposed to refer to the present warrant as "EAW No. 3". The Court is no longer directly concerned with the earlier two warrants, which later in this judgment will be designated as "EAW No. 1" and "EAW No. 2" respectively. However, for a full understanding of the issues before the Court in the present case it is necessary to set out the full history of the case covering the circumstances in which all three warrants came to be issued, and concerning what happened in relation to EAWs Nos. 1 and 2, respectively.

Relevant Chronological History

6 On the 12 ^th June, 2007 a European arrest warrant was issued by the requesting state seeking the rendition of the respondent for the purpose of prosecuting him in respect of a total of seventeen offences involving forgery and various forms of fraudulent and corrupt conduct. This warrant will now be designated, and hereinafter referred to, as "EAW No. 1". The ticked box procedure was purportedly invoked in respect of all seventeen offences and the boxes relating to "corruption", "swindling" and "forgery of administrative documents and trafficking therein" were indicated in part E I of the warrant. The judicial authority that issued EAW No. 1 was Dr. Balász Németh, a Judge of Veszprém County Court. This warrant relates, for the most part part, to the same offences as are the subject matter of the current warrant, "EAW No. 3".

7 EAW No. 1 was endorsed for execution by the High Court on the 5 ^th September, 2007 and the respondent was arrested on foot of EAW No. 1 on the 24 ^th September, 2007. He was brought before the High Court for the purposes of an arrest hearing in accordance with s. 13 of the European Arrest Warrant Act 2003, as amended, (hereinafter "the Act of 2003") and was remanded in custody with consent to bail. The Court has been informed that it was some weeks before he was in a position to take up his bail.

8 On the 3 ^rd April, 2008, unbeknownst to the High Court, the Central Authority and the respondent, and notwithstanding the existence of ongoing surrender proceedings under the Act of 2003, the issuing state proceeded to try the respondent in his absence. He was convicted in absentia on all counts and a sentence of three and a half years' was imposed upon him. It seems that a state appointed lawyer had been appointed by the Court of Trial in the issuing state to represent the respondent's interests at his trial in absentia. It appears that following the respondent's said conviction and sentencing the said lawyer, state appointed, filed an appeal against both conviction and sentence. Once again, this was done unbeknownst to the respondent, and it was done on the state appointed lawyer's own...