Minister for Justice and Equality v Szucs

JurisdictionIreland
JudgeMr. Justice Paul Burns
Judgment Date21 December 2020
Neutral Citation[2020] IEHC 695
Docket Number[2020 No. 066 EXT.]
CourtHigh Court
Date21 December 2020
BETWEEN
MINISTER FOR JUSTICE AND EQUALITY
APPLICANT
AND
GÁBOR SZŰCS
RESPONDENT

[2020] IEHC 695

Paul Burns

[2020 No. 066 EXT.]

THE HIGH COURT

European arrest warrant – Surrender – European Arrest Warrant Act 2003 s. 37 – Applicant seeking an order for the surrender of the respondent to Hungary pursuant to a European arrest warrant – Whether surrender was precluded by reason of s. 37 of the European Arrest Warrant Act 2003

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order for the surrender of the respondent, Mr Szűcs, to Hungary pursuant to a European arrest warrant dated 6th November, 2019 (the EAW). The EAW was issued by Dr Sipter, Investigative Judge of the Szeged District Court Investigative Judicial Unit, as the issuing judicial authority. The EAW sought the surrender of the respondent in respect of a single offence of swindling/fraud. The respondent delivered points of objection dated July, 2020. At hearing, counsel on behalf of the respondent pursued the following objections: (i) surrender was precluded by reason of s. 37 of the European Arrest Warrant Act 2003, as amended, as it would be incompatible with the State’s obligations under the European Convention on Human Rights (the ECHR) due to prison conditions in Hungary and/or the likely treatment of the respondent in prison due to his sexual orientation; (ii) surrender was precluded by reason of s. 44 of the 2003 Act, as the offence was committed outside of Hungary and the requirements of that section had not been met; and (iii) surrender was precluded by reason of s. 21A of the 2003 Act, as a decision had not been made to charge and try the respondent for the offence in the EAW.

Held by Burns J that he was not satisfied that the respondent had adduced sufficient cogent evidence to support a finding that there was a real risk that if surrendered, his fundamental human rights would be breached so that his surrender would be incompatible with the State’s obligations under the ECHR or the Constitution. On the basis of the mutual trust and confidence which underpins the European arrest warrant system, Burns J accepted the assurance given by the issuing state that the respondent’s right not to be discriminated would be respected and that both the Charter of Fundamental Rights of the European Union and the ECHR would be complied with. Burns J dismissed the respondent’s objection based upon a perceived discrimination or ill-treatment on grounds of his sexual orientation, if surrendered. Burns J held that there was nothing in the description of the circumstances of the alleged offence as set out to indicate that it was committed anywhere other than in the issuing state; the victim’s address in Hungary was given and it was stated that she was at home when offered the investment opportunities via telephone and internet by the respondent. Burns J dismissed the respondent’s objection based on s. 44 of the 2003 Act. Burns J held that the contents of the EAW were entirely consistent with a request for surrender for the purposes of conducting a criminal prosecution. Burns J found that the correspondence did not contradict the presumption contained in s. 21A of the 2003 Act. Burns J found that the respondent had failed to adduce sufficient cogent evidence that no decision to charge and try the respondent had been made at the time the EAW was issued. In such circumstances, Burns J dismissed the respondent’s objection based on s. 21A of the 2003 Act.

Burns J held that, having dismissed the respondent’s objections, the Court would make an order pursuant to s. 16(1) of the 2003 Act for the surrender of the respondent to Hungary.

Application granted.

JUDGMENT of Mr. Justice Paul Burns delivered on the 21st day of December, 2020
1

By this application the applicant seeks an order for the surrender of the respondent to Hungary pursuant to a European arrest warrant dated 6th November, 2019 (“the EAW”). The EAW was issued by Dr. Katalin Sipter, Investigative Judge of the Szeged District Court Investigative Judicial Unit, as the issuing judicial authority. The EAW seeks the surrender of the respondent in respect of a single offence of swindling/fraud.

2

The EAW was endorsed by the High Court on 9th March, 2020, was executed by An Garda Síochana and the respondent was brought before the High Court on 26th June, 2020. The Respondent has been in custody since that date with consent to bail, having not taken up bail.

3

I am satisfied that the person before the Court is the person in respect of whom the EAW was issued. No issue was raised in this respect.

4

I am satisfied that the minimum gravity requirements of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”), have been met. The offence in respect of which the surrender of the respondent is sought carries a maximum penalty of 3 years’ imprisonment.

5

At part E of the EAW, the particulars of the alleged offence are set out. It is certified at part E that the offence carries a maximum penalty of at least 3 years’ imprisonment and falls within article 2(2) of the Council Framework Decision dated 13th June, 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States, as amended (“the Framework Decision”), and the relevant box is ticked for “swindling/fraud”. By virtue of s. 38(1)(b) of the Act of 2003, it is not necessary for the applicant to show correspondence between an offence in the EAW and an offence under Irish law, where the offence in the EAW is an offence to which article 2(2) of the Framework Decision applies and carries a maximum penalty of at least 3 years’ imprisonment. There is nothing in the EAW or other documents before the Court that gives rise to any ambiguity or perceived manifest error, such as would justify this Court in looking behind the certification in the EAW. Nevertheless, for the sake of completeness I point out that I am satisfied that correspondence could be established in respect of the offence in the EAW and the offence under Irish law of deception contrary to s. 6 of the Criminal Justice (Theft and Fraud Offences) Act, 2001. At hearing, no issue was taken on behalf of the respondent as regards correspondence.

6

The respondent delivered points of objection dated July, 2020. At hearing, counsel on behalf of the respondent pursued the following objections:-

(i) surrender is precluded by reason of s. 37 of the Act of 2003 as it would be incompatible with the State's obligations under the European Convention on Human Rights (“the ECHR”) due to prison conditions in Hungary and/or the likely treatment of the respondent in prison due to his sexual orientation;

(ii) surrender is precluded by reason of s. 44 of the Act of 2003, as the offence was committed outside of Hungary and the requirements of that section have not been met; and

(iii) surrender is precluded by reason of s. 21A of the Act of 2003, as a decision has not been made to charge and try the respondent for the offence in the EAW.

Section 37 of the Act of 2003
7

The respondent's solicitor, Mr. Liam Ryan, swore an affidavit dated 9th July, 2020 exhibiting a large number of reports critical of prison conditions in Hungary, particularly overcrowding. He also exhibited reports highlighting hostility to, and discrimination against, persons in Hungary on grounds of sexual orientation. It was averred that the respondent had instructed Mr. Ryan that he is homosexual.

8

The Court sought further information from the issuing judicial authority in relation to the conditions in which the respondent was likely to be held if detained following surrender. By reply dated 12th October, 2020, the Hungarian Ministry of Justice set out the institutions in which the respondent was likely to be detained and gave what it...

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